Kong v. Dajin Realty Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

AIXIANG KONG

MEMORANDUM AND ORDER

Plaintiff,

Case No. 23-CV-1536 (FB) (CLP)

-against-

DAJIN REALITY, INC., STEVEN

GEE, BRONX COUNTY HOUSING

COURT, and QUEENS COUNTY

HOUSING COURT

Defendants.

Appearances: For the Defendants:

For the Plaintiff: STEVEN GEE

AIXIANG KONG, pro se Steven T. Gee, P.C.

58 Marta Drive 121 Chrystie Street

Wilmington, DE 19808 New York, NY 10002

BLOCK, Senior District Judge:

Pro se Plaintiff Aixiang Kong (“Kong”) brings this diversity action1 against

Defendants Dajin Reality, Inc. (“Dajin Reality”) and Steven Gee (“Gee”), seeking

injunctive relief and punitive damages. For the following reasons, Defendants’

1 Kong, who states that she resides in Delaware, claims diversity jurisdiction. “In

deciding whether there is jurisdiction over a claim, the court accepts as true all

factual allegations,” see Goonewardena v. New York, 475 F. Supp. 2d 310, 321

(S.D.N.Y. 2007), and Defendants do not contest the Court’s jurisdiction.

motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is

GRANTED.

I. BACKGROUND

On a Rule 12(b)(6) motion to dismiss, the Court assumes the complaint’s

factual allegations, but not legal conclusions, to be true, see Pension Ben. Guar.

Corp. ex rel. St. Vincent Cath. Med. Centers Ret. Plan v. Morgan Stanley Inv.

Mgmt. Inc., 712 F.3d 705, 717 (2d Cir. 2013), and may take judicial notice of

public records, including here, proceedings from state housing court. See Blue

Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc.,

369 F.3d 212, 217 (2d Cir. 2004). To survive a Rule 12(b)(6) motion to dismiss,

the complaint must include enough facts to state a claim to relief that is facially

plausible, see Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning

that the plaintiff must plead “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 (2009). A complaint “filed pro se is to be

liberally construed” and “held to less stringent standards than formal pleadings

drafted by lawyers.” See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (cleaned up).

This case springs from a housing dispute between Kong, landlord Dajin

Reality, and Dajin Reality’s attorney, Gee. In 2013, Kong signed a lease for the

Second Floor Apartment at 132-31 41st Street, Flushing, New York 11355 (“the

Premises”). Kong claims that in 2015, she filed for an uncontested divorce against

non-party Changhe Cheng (“Cheng”), moved out from the Premises, and did not

return. However, according to Kong, Dajin Realty nonetheless printed Kong’s

name on the 2016 lease for the Unit, which she learned of in 2019.

Dajin Reality eventually brought a holdover proceeding against Kong, which

Judge Maria Ressos of the Queens County Housing Court dismissed on August 28,

2019. However, Judge Ressos held that this dismissal was without prejudice for

claims for past use and occupancy, which could be sought in a nonpayment

proceeding.

Dajin Realty did exactly that, commencing a nonpayment action against

Kong, Cheng, and Kong’s son in September 2019. In a May 8, 2020, decision,

Judge Scott-McLaughlin found that Kong was the Tenant of Record of the Subject

Premise because she executed lease agreements for the second and third floor,

although Dajin Reality did not present evidence regarding Kong’s tenancy or

current occupancy of the Premises. However, based on a misunderstanding of

Cheng’s testimony, Judge Scott-McLaughlin erroneously found that Kong was

deceased and accordingly declined to award a default judgment against Kong.

Correcting this mistake, Judge Scott-McLaughlin issued a subsequent

Decision and Order on January 6, 2023, in which she vacated both the finding that

Kong was deceased and the previous dismissal of the nonpayment proceedings.

Citing Kong’s failure to appear at trial or file an answer, Judge Scott-McLaughlin

awarded a default judgment and warrant of eviction against Kong.

In March 2023, Kong commenced this action against Dajin Realty, Dajin

Realty’s attorney Gee, and the Bronx and Queens County Housing Courts. Before

the case was transferred to this Court, Judge Morrison held that the Eleventh

Amendment’s sovereign immunity barred Kong’s claims against the Bronx and

Queens County Housing Courts. See Kong v. Dajin Realty Inc., No. 23-CV-

01536-NRM-CLP, 2023 WL 2623556, at *2 (E.D.N.Y. Mar. 24, 2023).

II. DISCUSSION

The gravamen of Kong’s Complaint is that she has been improperly dragged

through nonpayment proceedings, as she is the “wrong party” in these proceedings

because she moved from the Premises in 2015. Kong specifically appears to take

issue with Judge Scott-McLaughlin’s finding that Kong was a tenant of record for

the Premises and the ultimate default judgment and warrant of eviction awards

against Kong.

To the extent that Kong seeks federal judicial review of the New York state

housing courts’ decisions, the Court lacks subject-matter jurisdiction to do so

under the Rooker-Feldman doctrine. See Exxon Mobil Corp. v. Saudi Basic Indus.,

544 U.S. 280, 284 (2005) (The Rooker-Feldman doctrine prevents review of a case

“brought by a state-court loser complaining of injuries caused by state-court

judgments rendered before the district court proceedings commenced and inviting

district court review and rejection of those judgments.”); Hoblock v. Albany Cty.

Bd. of Elections, 422 F. 3d 77, 85 (2d Cir. 2005) (“in some circumstances, federal

suits that purport to complain of injury by individuals in reality complain of injury

by state-court judgments”). If Kong is dissatisfied with Judge Scott-McLaughlin’s

judgment and believes she should be excluded from the state housing court

proceedings, her remedy “is to appeal such matters within the state court judicial

system.” See Brown v. Rosen, No. 19-CV-6786 (CM), 2019 WL 5593020, at *2

(S.D.N.Y. Oct. 29, 2019).

Turning to the merits of the claims not precluded by the Rooker-Feldman

doctrine, it is unclear from the Complaint which claims Kong brings against

Defendants — it does not name specific claims, seeking instead injunctive relief

and punitive damages. Accordingly, the Court liberally construes Kong’s

Opposition papers as indicating that she brings claims for intentional infliction of

emotional distress (“IIED”), defamation, abuse of process, and harassment.

A. Intentional Infliction of Emotional Distress

First, Kong appears to bring a claim for IIED against Defendants, ostensibly

for their filing the nonpayment proceedings. An IIED claim under New York law

requires: “(1) extreme and outrageous conduct, (2) intent to cause severe emotional

distress, (3) a causal connection between the conduct and the injury, and (4) severe

emotional distress.” See Coggins v. Cnty. of Nassau, 254 F. Supp. 3d 500, 523

(E.D.N.Y. 2017) (quoting Bender v. City of New York, 78 F.3d 787, 790 (2d Cir.

1996)). The conduct must be “‘so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized society.’” Id. (quoting Martin v.

Citibank, N.A., 762 F.2d 212, 220 (2d Cir. 1985)).

Here, Kong fails to state an IIED claim. Defendants’ commencement of the

nonpayment proceedings does not constitute “extreme and outrageous conduct,”

especially because Judge Scott-McLaughlin found in Dajin Reality’s favor. See

O’Bradovich v. Vill. of Tuckahoe, 325 F. Supp. 2d 413, 435 (S.D.N.Y. 2004)

(“[T]he mere commencement of a civil action, even if alleged to be for the

purposes of harassment or intimidation, is insufficient to support a claim of

IIED.”).

B. Defamation

Kong also cannot maintain a defamation claim against Defendants. First,

she fails to identify any allegedly defamatory statements. See Traylor v.

Hammond, 94 F. Supp. 3d 203, 217 (D. Conn. 2015) (“A complaint for defamation

must, on its face, specifically identify what allegedly defamatory statements were

made, by whom, and to whom.”) (cleaned up).

Second, and more fundamentally, Defendants cannot be held liable for any

allegedly defamatory statements they made during litigation. In New York, “it is

well-settled that statements made in the course of litigation are entitled to absolute

privilege” from defamation, see Front, Inc. v. Khalil, 24 N.Y.3d 713 (2015), which

clearly applies to statements made in pleadings and in courts. See O’Brien v.

Alexander, 898 F. Supp. 162, 171 (S.D.N.Y. 1995), aff’d, 101 F.3d 1479 (2d Cir.

1996). As Kong alleges that Defendants made “false and harmful statements . . . to

numerous individuals during the litigation process in the lower civil courts” and

“in their Motion to Dismiss,” absolute privilege shields the Defendants from

liability for any allegedly defamatory statements.

C. Abuse of Process

An abuse of process claim in New York requires “1) regularly issued

process, either civil or criminal, (2) an intent to do harm without excuse or

justification, and (3) use of the process in a perverted manner to obtain a collateral

objective.” See Curiano v. Suozzi, 63 N.Y.2d 113, 116 (1984).

Kong fails to state a claim for abuse of process. First, commencing a civil

action by summons and complaint is insufficient to meet the first element — the

process used must unlawfully interfere with the plaintiff’s person or property. Id.

Second, Kong fails to demonstrate how process was improperly used. “Mere

allegations of malicious motivation on the part of the defendants in bringing the

underlying action are insufficient, however, to give rise to an abuse of process

cause of action.” Colina v. One E. River Place Realty Co., LLC, No. 99 CIV. 5173

(DC), 2000 WL 1171126, at *4 (S.D.N.Y. Aug. 17, 2000). Given the housing

court’s finding in Dajin Reality’s favor, the Court cannot conclude that the

Defendants improperly abused process.

D. Other Potential Claims

Liberally construing Kong’s complaint, as we must, the Court searches in

vain for another potential claim. While harassment is a crime under the New York

Penal Code, there is no civil claim for harassment outside the employment context.

See New York ex rel. Spitzer v. Cain, 418 F. Supp. 2d 457, 486 (S.D.N.Y. 2006)

(“New York does not recognize a civil cause of action for harassment.”) (quoting

Broadway Central Property Inc. v. 682 Tenant Corp., N.Y.S.2d 225, 227 (1st

Dep’t 2002)). Moreover, Kong cannot maintain a claim for malicious prosecution

of a civil action because she cannot establish that the nonpayment proceedings

terminated in her favor. See Colina v. One E. River Place Realty Co., LLC, No. 99

CIV. 5173 (DC), 2000 WL 1171126, at *3 (S.D.N.Y. Aug. 17, 2000) (dismissing

claim because non-primary residence proceeding did not terminate in her favor).

Thus, Kong has failed to state a viable claim.

III. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss is granted.

SO ORDERED.

_/S/ Frederic Block___________

FREDERIC BLOCK

Senior United States District Judge

Brooklyn, New York

January 16, 2024