Flores

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________

VALERIE FLORES,

Plaintiff,

v. 1:26-CV-0123

(AMN/ML)

ADA JAMES PLACE, also known as

Passages,

Defendant.

_____________________________________________

APPEARANCES: OF COUNSEL:

Valerie Flores

Plaintiff, Pro Se

Post Office Box 1110 ACP 5749

Albany, New York 12201

MIROSLAV LOVRIC, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION

Plaintiff Valerie Flores (“Plaintiff”) filed this pro se complaint against Defendant Ada

James Place (“Defendant”) alleging violations of her rights. (Dkt. No. 1.) Plaintiff did not pay

the filing fee and seeks leave to proceed in forma pauperis (“IFP”). (Dkt. No. 15.) For the

reasons set forth below, I (1) grant Plaintiff’s second amended IFP application, and (2)

recommend that the Complaint be dismissed in its entirety without leave to amend.

I. BACKGROUND

Construed as liberally1 as possible, the Complaint alleges violations of Plaintiff’s rights

by Defendant. (See generally Dkt. No. 1.)

More specifically, the Complaint alleges that at an unspecified time she spoke on the

phone with an individual named “Kayla” who “denied” Plaintiff without a reason. (Dkt. No. 1 at

5.) Plaintiff alleges that the next day she spoke with a female who was “rude” and denied

Plaintiff access to speak to the “director.” (Id.) Plaintiff alleges that she was denied services

despite being on an address confidentiality program and thus, she was discriminated against “due

to being a member of several protective classes.” (Dkt. No. 1 at 5.) Based on these factual

allegations, Plaintiff appears to assert (1) a claim pursuant to 15 U.S.C. § 1692(d), and (2) a

claim of harassment. (Dkt. No. 1 at 3; Dkt. No. 1, Attach. 1.) As relief, Plaintiff seeks $40,000

in damages. (Dkt. No. 1 at 4; Dkt. No. 1, Attach. 1.)

II. PLAINTIFF’S SECOND AMENDED APPLICATION TO PROCEED IN FORMA

PAUPERIS

When a civil action is commenced in a federal district court, the statutory filing fee,

currently set at $405, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized,

however, to permit a litigant to proceed IFP status if a party “is unable to pay” the standard fee

for commencing an action. 28 U.S.C. § 1915(a)(1).2 After reviewing Plaintiff’s second

1 The court must interpret pro se complaints to raise the strongest arguments they suggest.

Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790

(2d Cir. 1994)).

2 The language of that section is ambiguous because it suggests an intent to limit

availability of IFP status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the

commencement of an action without prepayment of fees “by a person who submits an affidavit

that includes a statement of all assets such prisoner possesses”). The courts have construed that

section, however, as making IFP status available to any litigant who can meet the governing

amended IFP application (Dkt. No. 15), the Court finds that Plaintiff meets this standard.3

Therefore, Plaintiff’s second amended application to proceed IFP is granted.4

III. LEGAL STANDARD FOR REVIEW OF THE COMPLAINT

“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the

court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is

frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks

monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).

In order to state a claim upon which relief can be granted, a complaint must contain, inter

alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.

R. Civ. P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief

means that 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) (emphasis

added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 [2007]). “Determining whether a

complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial

experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to

infer more than the mere possibility of misconduct, the complaint has alleged–but it has not

shown–that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citation and

punctuation omitted).

financial criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City

of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002).

3 Plaintiff is a prolific filer; she is cautioned that proceeding IFP is a privilege, not an

unqualified right. The continued filing of frivolous lawsuits may result in the denial of a request

to proceed IFP in an action.

4 Plaintiff is reminded that, although her IFP application has been granted, she is still

required to pay fees that she may incur in this action, including copying and/or witness fees.

“In reviewing a complaint . . . the court must accept the material facts alleged in the

complaint as true and construe all reasonable inferences in the plaintiff’s favor.” Hernandez v.

Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court

must accept as true all of the allegations contained in a complaint is inapplicable to legal

conclusions. Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d

66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam)

(reading the plaintiff’s pro se complaint “broadly, as we must” and holding that the complaint

sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua

sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties .

. . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).

IV. ANALYSIS

In addressing the sufficiency of a plaintiff’s complaint, the court must construe her

pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).

Having reviewed Plaintiff’s Complaint with this principle in mind, I recommend that all causes

of action be dismissed for two reasons.

First, even construed with the “special solicitude” afforded to pro se pleadings, Triestman

v. Federal Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006), the Complaint is woefully

lacking factual allegations sufficient to plausibly suggest any cause of action. Plaintiff appears

to assert that at some unspecified time, two individuals were rude to her over the phone and thus,

she has been discriminated against. (See generally Dkt. No. 1.) Moreover, the Complaint

alleges that one of the individuals who was rude to her on the phone is named Kayla and there is

a Kayla who works at a post office “who might be involved in delayed mail issues.” (Dkt. No. 1

at 5.) These attenuated and fanciful allegations are wholly incredible “whether or not there are

judicially noticeable facts available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 32-

33 (1992); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).

“Plaintiff's beliefs – however strongly [s]he may hold them – are not facts.” Morren v. New York

Univ., 20-CV-10802, 2022 WL 1666918, at *18 (S.D.N.Y. Apr. 29, 2022) (citation omitted),

report and recommendation adopted, 2022 WL 1665013 (S.D.N.Y. May 25, 2022).

The undersigned finds that “because Plaintiff does not provide any plausible factual

support for her claims, they rise to the level of irrational and must be dismissed as frivolous.”

Moore v. Georgia, 24-CV-5545, 2024 WL 4149959, at *3 (S.D.N.Y. Sept. 11, 2024) (citing

Kraft v. City of New York, 823 F. App’x 62, 64 (2d Cir. 2002) (summary order) (internal citations

omitted) (holding that “the district court did not err in sua sponte dismissing the complaint as

frivolous,” based on the plaintiff’s allegations that he had “been the subject of 24-hour, multi-

jurisdictional surveillance by federal fusion centers and the New York State Intelligence Center,

which put a digital marker on him in order to collect his personal data and harass him”)); accord

Moore v. Fox News, 24-CV-5470, 2024 WL 4635337, at *3 (S.D.N.Y. Oct. 30, 2024).

As a result, I recommend that Plaintiff’s Complaint be dismissed as frivolous pursuant to

28 U.S.C. § 1915(e)(2)(B)(i).

Second, in the alternative, I recommend that the Complaint be dismissed for failure to

state a claim upon which relief may be granted.

To state a claim under the Fair Debt Collection Practices Act (“FDCPA”) pursuant to 15

U.S.C. § 1692, “a plaintiff must demonstrate that: (1) the plaintiff is a person who was the object

of efforts to collect a consumer debt; (2) the defendant is a debt collector as defined in the

statute; and (3) the defendant has engaged in an act or omission in violation of the FDCPA.”

Felberbaum v. Sequium Asset Solutions, 21-CV-9513, 2023 WL 167559, at *3 (S.D.N.Y. Jan.

11, 2023) (citing Cohen v. Ditech Fin. LLC, 15-CV-6828, 2017 WL 1134723, at *3 (E.D.N.Y.

Mar. 24, 2017)). The Complaint fails to allege facts plausibly suggesting that (1) Plaintiff is a

person who was the object of efforts to collect a consumer debt, (2) Defendant is a debt collector,

or (3) that Defendant engaged in an act or omission in violation of the FDCPA. (See generally

Dkt. No. 1); Komatsu v. Urban Pathways, Inc., 22-CV-9080, 2023 WL 419699, at *9 (S.D.N.Y.

Jan. 26, 2023) (citing 15 U.S.C. 1692e) (“In cases where the FDCPA applies, it prohibits

deceptive and misleading practices by ‘debt collectors.’”). As a result, I recommend that

Plaintiff’s FDCPA claim be dismissed for failure to state a claim upon which relief may be

granted.

To the extent that the Complaint is construed as alleging a discrimination claim, it fails to

state a claim upon which relief may be granted. “Simply being a member of a protected class,

without something more to link that status to the action in question, is not enough to raise a

reasonable inference of discriminatory animus.” Cole v. Board of Trustees of Northern Ill.

Univ., 838 F.3d 888, 900 (7th Cir. 2016); see Karunakaran v. Borough of Manhattan Cmty.

Coll., 18-CV-10723, 2022 WL 902370, at *3 (S.D.N.Y. Mar. 28, 2022) (quoting Littlejohn v.

City of New York, 795 F.3d 297, 311 (2d Cir. 2015)) (“Although a plaintiff is not required to

plead facts proving each element of a prima facie case of discrimination at the pleading stage,

her allegations must provide ‘plausible support’ for a ‘minimal inference’ that the [defendant]

was motivated by discriminatory intent.”); Canady v. Union 1199/SEIU, 527 F. Supp. 3d 515,

516 (W.D.N.Y. 2021) (“simply falling into a protected category is not enough”); Perry v. County

of Westchester, 06-CV-3000, 2008 WL 11438085, at *17 (S.D.N.Y. Mar. 31, 2008) (“Plaintiff's

membership in a protected class in and of itself does not establish discriminatory animus”).

Having found that Plaintiff’s federal claims are subject to dismissal, I recommend that the

Court decline to exercise jurisdiction over any state law claims. See 28 U.S.C. § 1367(c)(3)

(providing that a district court “may decline to exercise supplemental jurisdiction over [pendent

state law claims] if . . . the district court has dismissed all claims over which it has original

jurisdiction”); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (“[I]n the usual

case in which all federal-law claims are eliminated before trial, the balance of factors to be

considered under the pendent jurisdiction doctrine—judicial economy, convenience, fairness,

and comity—will point toward declining to exercise jurisdiction over the remaining state-law

claims.”); Walker v. Time Life Films, Inc., 784 F.2d 44, 53 (2d Cir. 1986) (citing Kavit v. A.L.

Stamm & Co., 491 F.2d 1176, 1180 (1974)) (holding that “federal courts, absent exceptional

circumstances, should abstain from exercising pendent jurisdiction when federal claims in a case

can be disposed of by summary judgment”).5

As a result, I recommend, in the alternative, that the Complaint be dismissed for failure to

state a claim upon which relief may be granted.

V. OPPORTUNITY TO AMEND

Generally, a court should not dismiss claims contained in a complaint filed by a pro se

litigant without granting leave to amend at least once “when a liberal reading of the complaint

5 In the alternative, New York does not recognize private causes of action for harassment

and abuse, hence, I recommend that those claims be dismissed. Graham v. UMG Recordings,

Inc., 806 F. Supp. 3d 454, 476 (S.D.N.Y. 2025) (“New York does not recognize a civil cause of

action for harassment.”); Jones v. L3 Harris, 730 F. Supp. 3d 26, 29 (W.D.N.Y. 2024) (citing

Robinson v. Williams, 22-CV-0982, 2023 WL 3352758, at *9 (N.D.N.Y. Jan. 12, 2023) (Lovric,

M.J.), adopted 2023 WL 2986825 (N.D.N.Y. Apr. 18, 2023)) (“It is well-settled that ‘there is no

private cause of action for stalking or general harm.’”).

gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05

(2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when

justice so requires.”). An opportunity to amend is not required, however, where “the problem

with [the plaintiff’s] causes of action is substantive” such that “better pleading will not cure it.”

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding

L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact

sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated

differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is

not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d

129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1

(N.D.N.Y. Sept. 22, 1997) (Pooler, J.).6

Here, a better pleading could not cure the deficiencies identified with Plaintiff’s claims

because there is “no indication in the Complaint that Plaintiff’s allegations against Defendant[]

involve any debt, debt collectors, or debt collection practices. Together with the finding that

Plaintiff’s Complaint is frivolous and nonsensical, . . . weighs heavily in favor of concluding that

any opportunity to amend would be futile.” Flores v. Smith, 25-CV-1838, 2026 WL 2606630, at

*3 (N.D.N.Y. Sept. 3, 2026) (Nardacci, J.) (internal citation omitted). As a result, I recommend

that the Court decline to grant Plaintiff leave to amend.

6 See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015)

(Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171

F.3d 794, 796 (2d Cir. 1999)—that the Court should grant leave to amend “unless the court can

rule out any possibility, however unlikely it might be, that an amended complaint would be

successful in stating a claim”—is likely not an accurate recitation of the governing law after Bell

Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev’d on other grounds, 682 F. App’x 30.

PLAINTIFF IS ADVISED THAT SHE SHOULD NOT SEEK TO FILE A MOTION TO

AMEND HER COMPLAINT UNTIL UNITED STATES DISTRICT JUDGE NARDACCI

RULES ON THIS COURT’S RECOMMENDATIONS WITH RESPECT TO PLAINTIFF’S

COMPLAINT. ANY AMENDED COMPLAINT OR MOTION TO AMEND BEFORE JUDGE

NARDACCI’S DECISION WITH RESPECT TO THIS COURT’S RECOMMENDATIONS

WILL BE STRICKEN AS PREMATURE AND WILL NOT BE CONSIDERED BY THE

COURT. As noted below, however, Plaintiff may file objections to this Court’s

recommendations.

ACCORDINGLY, it is

ORDERED that Plaintiff’s second amended application to proceed in forma pauperis

(Dkt. No. 15) is GRANTED; and it is further respectfully

RECOMMENDED that Plaintiff’s Complaint (Dkt. No. 1) be DISMISSED in its

entirety without leave to amend pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further

respectfully

ORDERED that the Clerk of the Court shall file a copy of this Order and Report-

Recommendation on the docket of this case and serve a copy upon the parties in accordance with

the local rules.7

7 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein

in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within

which to file written objections to the foregoing report.® Such objections shall be filed with the

Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN

DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013);

Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v.

Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).

Dated: September 9, 2026

Binghamton, New York

Miroslav Lovric

U.S. Magistrate Judge

8 If you are proceeding pro se and served with this report, recommendation, and order by

mail, three additional days will be added to the fourteen-day period, meaning that you have

seventeen days from the date that the report, recommendation, and order was mailed to you to

serve and file objections. Fed. R. Civ. P. 6(d). Ifthe last day of that prescribed period falls on a

Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day

that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).

10

1997 WL 599355 amended complaint alleging the specific acts committed by

Only the Westlaw citation is currently available. the individuals named as defendants which Brown claimed

United States District Court, N.D. New York. violated his constitutional rights. Brown filed an amended

complaint on March 21, 1996. In his amended complaint,

Kenneth BROWN, Plaintiff, Brown alleged that defendants violated his rights under the

v. Eighth and Fourteenth Amendments by failing to process

Andrew PETERS, Warden, Watertown Correctional properly his interstate compact paperwork, resulting in Brown

Facility; Joseph Williams, Warden, Lincoln Work– being imprisoned pursuant to a parole hold when in fact

he had never violated the conditions of his parole. For a

Release Center; Francis J. Herman, Senior Parole

more complete statement of Brown's claims, see his amended

Officer Interstate Bureau; T. Stanford, Senior Parole

complaint. Dkt. No. 5.

Officer; Deborah Stewart, Parole Officer; John Doe #

1, Parole Agent, Watertown Correctional Facility; John On August 5, 1996, defendants Peters and Williams made

Doe # 2, Parole Agent, Lincoln Work Release Center; a motion to dismiss for failure to state a claim pursuant to

Susan Bishop, Director of Interstate Compact, South Fed.R.Civ.P. 12(b)(6). Dkt. No. 13; Dkt. No. 14, at 2. On

Carolina; Cecil Magee, Parole Officer, South Carolina; August 19, 1996, defendants Bishop, Magee, Barton, and

Frank Barton, Parole Officer, South Carolina; John McMahan made a motion to dismiss the complaint against

McMahan, Parole Officer, South Carolina, Defendants. them or, in the alternative, for summary judgment. Dkt. No.

20. On October 17, 1996, defendants Herman, Stewart, and

No. Civ.A. 95CV1641RSPDS. Stanford made a motion to dismiss for failure to state a

| claim. Dkt. No 34. On April 17, 1996, Magistrate Judge

Sept. 22, 1997. Scanlon recommended that all defendants' motions to dismiss

be granted and that the complaint be dismissed. Dkt. No. 50.

Attorneys and Law Firms

On June 9, 1997, Brown filed objections to the

Kenneth Brown, State Court Institute–Greene, Waynesburg,

magistrate judge's report-recommendation, having been

PA, plaintiff, pro se.

granted additional time in which to do so. Dkt. No. 52. In

Dennis C. Vacco, New York State Attorney General, The addition, Brown filed on June 9, 1997, a motion for leave to

Capitol Albany, NY, for defendants Peters, Herman Stewart, file a second amended complaint and a copy of his proposed

Doe # 1, Doe # 2, and Williams, Jeffrey M. Dvorin, Assistant amended complaint. Dkt. No. 53. I turn first to the last motion

Attorney General, Carl N. Lundberg, Chief Legal Counsel, filed, Brown's motion for leave to amend his complaint a

South Carolina Department of Probation, Columbia, SC, for second time.

defendants Bishop, Magee, Barton, McMahan, and Stanford,

Carl N. Lundberg, of Counsel. Brown seeks to file a second amended complaint “setting

forth in detail the personal involvement of each defendant

and how their acts of commission and omission served to

DECISION AND ORDER deprive plaintiff of Constitutionally secured rights.” Dkt. No.

53. The district court has discretion whether to grant leave

POOLER, J. to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d 129,

131 (2d Cir.1993). In exercising that discretion, the court

*1 The above matter comes to me following a Report– should freely grant leave to amend when justice so requires.

Recommendation by Magistrate Judge Daniel Scanlon, Jr., Fed.R.Civ.P. 15(a). However, the court need not grant leave

duly filed on April 17, 1997. Following ten days from the to amend where it appears that amendment would prove to be

service thereof, the Clerk has sent me the entire file, including unproductive or futile. Ruffolo, 987 F.2d at 131.

any and all objections filed by the parties herein.

Here, Brown moved to amend his complaint to add additional

Plaintiff Kenneth Brown commenced this Section 1983 civil allegations against the named defendants. However, the

rights action on November 17, 1995. On February 12, additional allegations fail to cure the deficiency which

the absence of defendants' personal involvement in a to which specific, written objection has been made.” Brown's

constitutional deprivation. Section 1983 imposes liability objections fail to address directly any of the analysis.

upon an individual only when personal involvement of that Brown's objections state (1) that he has been deprived of

individual subjects a person to deprivation of a federal right. his constitutional rights; (2) that he has stated a cause of

See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. action; (3) that the court wrongly refused to appoint an

2018, 56 L.Ed.2d 611 (1978). A complaint is fatally defective attorney for him and wrongly stayed discovery pending the

if it fails to allege personal involvement sufficient to establish outcome of these motions; (4) that he seeks to file an amended

that a supervisor was “directly and personally responsible for complaint; (5) the standard of review for a Fed.R.Civ.P. 12(b)

the purported unlawful conduct.” Alfaro Motors, Inc. v. Ward, (6) motion; (6) that he disagrees with the magistrate judge's

814 F.2d 883, 886 (2d Cir.1987). recommendation to grant defendants' motions because the

allegations in his complaint, which he repeats, show that his

*2 Brown's proposed amended complaint alleges in rights were violated; and (7) the text of the Fourteenth and

conclusory fashion that defendants acted “in a grossly Eighth Amendments.

negligent and concerted manner which breached their duties

owed to Plaintiff and is the proximate cause of [the violation Even affording the objections the liberal reading required

of plaintiff's constitutional rights].” Proposed Am. Compl., for pro se pleadings, I find that these objections fail to

at 3. Brown continues in the same vein, stating that state any basis whatsoever, much less a specific one, for

defendants owed duties to plaintiff to carry out their jobs in a the court not to adopt the magistrate judge's rulings. They

professional manner and they failed to carry out those duties simply re-state the relief sought and the facts on which Brown

appropriately. The complaint states that defendants held grounds his complaint and conclude that the magistrate

specific responsibilities, such as checking for outstanding judge's conclusions are wrong. When the parties make only

warrants, which if performed properly should have alerted frivolous, conclusive, or general objections, the court reviews

them to a problem. However, nowhere does the complaint the report-recommendation for clear error. See Camardo v.

set forth allegations that these defendants either participated General Motors Hourly–Rate Employees Pension Plan, 806

directly in any constitutional infraction or that they were even F.Supp. 380, 382 (W.D.N.Y.1992) (court need not consider

aware of such an infraction. The proposed amended complaint objections which are frivolous, conclusive, or general and

merely alleges that these defendants failed in performing their constitute a rehashing of the same arguments and positions

supervisory and ministerial functions. “These bare assertions taken in original pleadings); Chambrier v. Leonardo, 1991

do not state a claim under 42 U.S.C. § 1983.” Smiley v. Davis, WL 44838, *1 (S.D.N.Y.) (restatement of allegations already

1988 WL 78306, *2 (S.D.N.Y.). before the court and assertion that valid constitutional claim

exists insufficient to form specific objections); Schoolfield

This plaintiff previously has had the opportunity to amend his v. Dep't of Correction, 1994 WL 119740, *2 (S.D.N.Y.)

complaint for the same reason asserted here, to allege personal (objections stating that magistrate judge's decisions are

involvement on the part of defendants. Brown's first amended wrong and unjust, and restating relief sought and facts

complaint failed to accomplish that task, and it appears that upon which complaint grounded, are conclusory and do not

even if allowed to amend again Brown would be unable to form specific basis for not adopting report-recommendation);

make the requisite allegations with sufficient specificity to Vargas v. Keane, 1994 WL 693885, *1 (S.D.N.Y.) (general

sustain his complaint. Consequently, I find that amendment objection that report does not address violation of petitioner's

would be futile, and I deny Brown's motion for leave to amend constitutional rights is a general plea that report not be

his complaint. adopted and cannot be treated as objection within the meaning

of 28 U.S.C. § 636), aff'd, 86 F.3d 1273 (2d Cir.), cert.

I turn now to the magistrate judge's report-recommendation denied, 519 U.S. 895, 117 S.Ct. 240, 136 L.Ed.2d 169

and defendants' motions. The magistrate judge recommends (U.S.1996). See also Scipio v. Keane, 1997 WL 375601, *1

that I grant defendants' motions and dismiss the complaint (1997) (when objections fail to address analysis directly, court

as to all defendants. The report-recommendation clearly reviews report-recommendation for clear error); Fed.R.Civ.P.

describes the grounds on which the magistrate judge 72(b), Advisory Comm. Note (when no specific, written

recommends dismissal as to each defendant. Fed.R.Civ.P. objections filed, “court need only satisfy itself that there is

72(b) requires the district judge to make a de novo

recommendation”). Correctional Facility in Watertown, New York. He applied

for an interstate compact because he wanted to return to

*3 Because Brown fails to make specific objections or South Carolina to live with his common law wife, Pamela

provide any basis for his general objections, I review the Reid. During the application process, he was interviewed by

report-recommendation for clear error. After careful review, the facility's parole officer, identified only as defendant John

I conclude that the magistrate judge's report-recommendation Doe # 1. After signing the necessary papers, his application

is well-reasoned and is not clearly erroneous.1 The was forwarded to defendant Andrew Peters, the facility's

magistrate judge employed the proper standard, accurately superintendent, who reviewed, signed and forwarded the

recited the facts, and reasonably applied the law to those facts. papers to the Interstate Bureau. Amend. Compl. at ¶¶ 1–2;

Consequently, I adopt the report-recommendation. Exs. A, B.

On or about January 15, 1992, while his compact was waiting

for review at the Interstate Bureau, plaintiff was approved for

CONCLUSION work release and sent to the Lincoln Work Release Center

in New York City. While at the center, plaintiff spoke to a

Because plaintiff's proposed amendment demonstrates that

parole officer, defendant John Doe # 2, and told him that

amendment would be futile, I deny plaintiff's motion for leave

he was seeking a compact that would return him to South

to amend his complaint. I approve the magistrate judge's

Carolina upon his conditional release. Plaintiff claims the

recommendation and grant defendants' motions to dismiss.

parole officer told him that he would handle the necessary

Plaintiff's complaint is dismissed in its entirety.

paperwork, although the officer had had no experience with

an interstate compact. Amend. Compl. at ¶¶ 3, 4.

IT IS SO ORDERED.

*4 Plaintiff, meanwhile, asked Reid whether any officials

had contacted her in South Carolina regarding his prospective

ORDER and REPORT–RECOMMENDATION residence in that state. Upon discovering no one had contacted

her, plaintiff asked a lawyer he knew, Navron Ponds, to

This matter was referred to the undersigned for report and

inquire as to his compact status. In March, 1992, the

recommendation by the Hon. Rosemary S. Pooler, United

lawyer spoke with defendant Susan Bishop, who is the

States District Judge, by Standing Order dated November

director of the interstate compact program in South Carolina.

12, 1986. Currently before this Court are a number of

Bishop allegedly told Ponds that plaintiff “was disapproved

motions. Defendants Peters and Williams have filed a motion

because there was a discrepancy about approving plaintiff['s]

to dismiss (dkt.13); defendants Bishop, Magee, Barton and

compact.” The “discrepancy” was the fact that plaintiff owed

McMahan have filed a motion for summary judgment, or in

the state of South Carolina eighty-six days of confinement

the alternative to dismiss (dkt.20); and defendants Herman,

from a previous sentence. Plaintiff claims Bishop told Ponds

Stewart and Stanford also have filed a motion to dismiss

to contact defendants Cecil Magee and Frank Barton, who

(dkt.34). Plaintiff opposes these three motions (dkts.27, 29,

worked for the South Carolina Parole Department. Sometime

33, 38). Defendants Bishop, Magee and McMahan have filed

in March, 1992, Ponds made some calls to Barton and Magee.

a motion to stay discovery (dkt.41) and plaintiff has filed a

A verbal agreement was reached, and plaintiff, upon speaking

motion to extend time (dkt.44) in which to file opposition to

with Barton and Magee was told that his compact had been

the latter motion for a stay of discovery.

approved. He also was told that he should report to the South

Carolina Department of Parole upon being released. Amend.

The Court addresses these issues seriatim.

Compl. at ¶¶ 5–7.

Prior to leaving the Lincoln Work Release Center, plaintiff

BACKGROUND processed paperwork related to his interstate compact. His

paperwork was sent by Doe # 2 to defendant Joseph Williams,

Plaintiff's amended complaint, which he has brought pursuant the superintendent of the center. Williams reviewed, signed

to 42 U.S.C. § 1983, alleges the following facts. In and returned the paperwork to plaintiff. On May 1, 1992,

Carolina. Three days later, he entered a South Carolina parole DISCUSSION

office and promptly was arrested because of the eighty-

six days of confinement that he owed the state. Plaintiff's A. Motion to Dismiss by Williams and Peters.

paperwork was given to defendant John McMahan, a parole Williams and Peters have filed a motion to dismiss plaintiff's

officer. Plaintiff claims that McMahan never returned this complaint pursuant to FED.R.CIV.P. 12(b)(6) on the grounds

paperwork to him. On May 20, 1992, the state of South that it fails to state a claim upon which relief may be

Carolina revoked plaintiff's parole and plaintiff was returned granted. In a Rule 12(b)(6) motion, all factual allegations

to prison to serve the eighty-six days that he owed. When he in the complaint must be taken and construed in plaintiff's

asked McMahan what would happen to his one year of parole favor. See LaBounty v. Adler, 933 F.2d 121, 122 (2d

from New York, the officer allegedly told him that his New Cir.1991) (citing Ortiz v. Cornette, 867 F.2d 146, 149 (1989)).

York parole would run concurrently with his South Carolina The Court's role is not to assess whether plaintiffs have

parole, and that when he finished his South Carolina parole, raised questions of fact or demonstrated an entitlement

he would not owe any parole whatsoever. Plaintiff served the to a judgment as a matter of law, as in a motion made

eighty-six days he owed and was released on July 31, 1992. pursuant to FED.R.CIV.P. 56 for summary judgment, but

Amend. Compl. at ¶¶ 8–10. rather to determine whether plaintiff's complaint sufficiently

alleges all of the necessary legal elements to state a claim

In February, 1993, plaintiff was arrested on robbery charges under the law. See Christopher v. Laidlaw Transit, Inc.

in South Carolina. The charges ultimately were dropped, 899 F.Supp. 1224, 1226 (S.D.N.Y.1995), (citing Ricciuti v.

but he apparently encountered some difficulties regarding New York City Transit Authority, 941 F.2d 119, 124 (2d

this arrest as a result of a parole hold that New York state Cir.1991)). Factual allegations in brief or memoranda may not

had placed upon him. Bishop's office told him that it had be considered. Fonte v. Board of Managers of Continental

nothing to do with his parole hold and that any problem that Towers Condominium, 848 F.2d 24, 25 (2d Cir.1988). The

he had was between him and the state of New York. He Court now turns to the issues presented.

talked to authorities in Albany, New York regarding the parole

hold, but was not successful in his efforts to have the hold Personal involvement of defendants in alleged constitutional

removed. On September 30, 1993, after had been extradited deprivations is a prerequisite to an award of damages under

to New York as a fugitive from justice, plaintiff was given a § 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994).

preliminary hearing at Riker's Island, New York. The hearing As superintendents at New York State Correctional facilities,

officer found no probable cause that plaintiff had violated any Williams and Peter may be found personally involved in the

condition of parole. He was released. Amend. Compl. at ¶¶ alleged deprivation of plaintiff's constitutionally protected

11–14; Exs. C–J. rights by a showing that they: (1) directly participated in the

infraction; (2) knew of the infraction, but failed to remedy

*5 Plaintiff claims that he would not have suffered hardships the wrong; (3) created or continued a policy or custom under

if his interstate compact had been handled correctly. He which unconstitutional practices occurred; or (4) were grossly

alleges that defendant Deborah Stewart failed to follow up negligent in managing subordinates who caused unlawful

and see whether plaintiff had arrived in South Carolina. If she conditions or events. Id., (quoting Williams v. Smith, 781

had, he argues, she would have discovered that he had been F.2d 319, 323–24 (2d Cir.1986)). Supervisory liability also

arrested upon his arrival. He alleges that defendant Francis may be imposed against Williams or Peters with a showing

Herman, a parole officer at the Interstate Bureau failed to of gross negligence or deliberate indifference to plaintiff's

do his job by not investigating plaintiff's violation reports. constitutional rights. Id. Absent some personal involvement

Amend. Compl. at ¶¶ 15–17; Exs. F–I. by Williams or Peters in the allegedly constitutionally infirm

conduct of their subordinates, neither can be held liable under

Plaintiff asserts that the foregoing amounts violations of his § 1983. Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987).

Eighth and Fourteenth Amendment rights, wherefore he both

compensatory and declaratory relief. *6 Plaintiff has not provided any evidence linking either

Williams or Peters to his alleged constitutional deprivations.

All that plaintiff has alleged is that Williams and Peters,

as superintendents, have reviewed and signed paperwork

that pro se complaints are held to “less stringent standards alleging that he was the appointed Senior Parole Officer at

than formal pleadings drafted by lawyers” for the purpose of a plaintiff's September 30, 1993 revocation hearing at Riker's

motion to dismiss under Rule 12(b)(6), Haines v. Kerner, 404 Island, plaintiff does not detail how Stanford violated his

U.S. 519, 520, 92 S.Ct. 594, 595–96, 30 L.Ed.2d 652 (1972), constitutional rights. Absent some personal involvement by

plaintiff has not explained how the ministerial conduct of Stanford in the allegedly constitutionally infirm conduct of

these two defendants was violative of the Constitution. Their his subordinates, he cannot be held liable under § 1983. Gill,

motion to dimiss should be granted. 824 F.2d at 196.

*7 Accordingly, the Court finds that Stanford, Stewart and

B. Motion for Summary Judgment or to Dismiss by Bishop, Herman's motion to dismiss should be granted.

Magee, Barton and McMahan.

Bishop, Magee, Barton and McMahan have filed a motion

for summary judgment, or in the alternative a motion to D. Plaintiff's “John Doe” Claims.

dismiss. The Court will treat their motion as a motion to In so far as neither John Doe # 1 nor John Doe # 2 have been

dismiss. “[C]omplaints relying on the civil rights statutes are identified and served in this matter, the Court does not have

insufficient unless they contain some specific allegations of jurisdiction over these parties and does not reach the merits

fact indicating a deprivation of rights, instead of a litany of plaintiff's claims against them.

of general conclusions that shock but have no meaning.”

Barr v. Adams, 810 F.2d 358, 363 (2d Cir.1987). Plaintiff

has not alleged specifically how the conduct of these four E. Discovery Motions.

defendants infringed upon his constitutional rights. In his Defendants Bishop, Magee and McMahan have filed a motion

amended complaint, he contends that defendants violated the to stay discovery until the Court has made a ruling on their

Constitution by “continuously breaching [[[their] duty” to motion to dismiss. Plaintiff has filed a motion to extend

him. This language underscores the defect with the complaint: the time in which he may file opposition to defendants'

if it alleges anything at all, it alleges that defendants were motion. Plaintiff, however, has filed his opposing response

negligent in handling plaintiff's interstate compact and parole. (dkt.47), therefore his instant discovery motion is denied as

To state a cognizable § 1983 claim, the prisoner must allege moot. In that the Court recommends granting defendants'

actions or omissions sufficient to demonstrate deliberate motion to dismiss, discovery in this matter would be fruitless.

indifference; mere negligence will not suffice. Hayes v. Accordingly, defendants' motion for a stay of discovery

New York City Dept. of Corrections, 84 F.3d 614, 620 (2d pending the resolution of their motion to dismiss is granted.

Cir.1996); Morales v. New York State Dep't of Corrections,

842 F.2d 27, 30 (2d Cir.1988) (section 1983 does not

encompass a cause of action sounding in negligence). CONCLUSION

The Court finds that the claims against Bishop, Magee, Barton WHEREFORE, based upon the foregoing analysis, it is

and McMahan should be dismissed. hereby

ORDERED, that plaintiff's motion to extend the time to file

C. Motion to Dismiss by Herman, Stewart and Stanford. an opposing reply (dkt.44) is denied as moot; and it is further

Plaintiff's claim against Stewart is that she failed to follow

up and see whether plaintiff had arrived in South Carolina. ORDERED, that defendants Bishop, Magee and McMahan's

Herman, he likewise asserts, failed to do his job because he motion to stay discovery until their motion to dismiss is

did not investigate plaintiff's violation reports. Plaintiff has decided (dkt.41) is granted; and it is further

not alleged how these actions run afoul of the Constitution;

and again, these claims seem to be grounded in negligence, RECOMMENDED, that defendants Peters and Williams'

which is not actionable under § 1983. Hayes, 84 F.3d at 620. motion to dismiss (dkt.13) be granted; and it is further

Plaintiff's claim against Stanford must fail because his

and McMahan's motion to dismiss (dkt.20) be granted; and it TO THIS REPORT WITHIN TEN (10) DAYS WILL

is further PRECLUDE APPELLATE REVIEW. Roldan v. Racette,

984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Secretary of

RECOMMENDED, that defendants Herman, Stewart and Health and Human Services, 892 F.2d 15 (2d Cir.1989)); 28

Stanford's motion to dismiss (dkt.34) be granted. U.S.C. § 636(b)(1); FED.R.CIV.P. 6(a), 6(e) and 72.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),

All Citations

the parties have ten (10) days within which to file written

objections to the foregoing report. Such objections shall be Not Reported in F.Supp., 1997 WL 599355

Footnotes

1 I note, however, that the report-recommendation would survive even de novo review.

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

2017 WL 1134723 A. Factual Allegations and State Foreclosure Action1

Only the Westlaw citation is currently available. On or about August 11, 2005, Cohen incurred a debt in

United States District Court, E.D. New York. the form of a mortgage loan. Complaint, DE [1], ¶ 15.

The mortgage was assigned on more than one occasion, the

Aaron COHEN, on behalf of himself and last assignment occurring on June 10, 2013 to Green Tree

all others similarly situated, Plaintiff, Servicing LLC (“Green Tree”). See Foreclosure Complaint

v. ¶ 4, Declaration of Carol A. Lastorino (“Lastorino Decl.”),

DITECH FINANCIAL LLC, and Rosicki, Ex. B, DE [25]. On March 11, 2015, Green Tree commenced

a foreclosure proceeding in state court (the “Foreclosure

Rosicki & Associates, P.C., Defendants.

Action”) upon Plaintiff's default on his mortgage payments

15-CV-6828 in 2009. See Foreclosure Compl. ¶ 7. After the foreclosure

| action was filed, Green Tree changed its name to Ditech.2

Signed 03/24/2017

After the foreclosure complaint was filed, Plaintiff received

Attorneys and Law Firms two additional documents in furtherance of the Foreclosure

Action: a Certificate of Merit Pursuant to CPLR 3012-b

LAW OFFICES OF SHIMSHON WEXLER, PC, BY:

(“Certificate”) and a request for judicial intervention (“RJI”).

Shimshon Wexler, Esq., 315 W. Ponce de Leon Ave., Suite

Compl. ¶ 23. The Certificate is dated March 11, 2015,

250, Decatur, Georgia 30030, Attorney for Plaintiff.

bears the same caption as the Foreclosure Complaint, and

BALLARD SPAHR LLP, BY: Justin Angelo, Esq., 919 Third certifies that plaintiff Green Tree “is the creditor entitled to

Avenue, Floor 37, New York, New York 10022, Attorneys for enforce rights” under the pertinent documents. Certificate ¶2,

Defendant Ditech Financial LLC. Lastorino Decl. Ex. C. The RJI uses the same caption as the

Foreclosure Complaint, indicates that the nature of the action

RIVKIN RADLER, LLP, BY: Carol A. Lastorino, Esq., 926 is a Real Property—Mortgage Foreclosure, and purports

RXR Plaza, Uniondale, New York 11556, Attorneys for to seek a “Residential Mortgage Foreclosure Settlement

Defendant Rosicki, Rosicki & Associates, P.C. Conference.” Lastorino Decl. Ex. D. Green Tree is designated

as the Plaintiff, but there is no language identifying it as the

“creditor.”

MEMORANDUM AND ORDER

*2 In the Foreclosure Action, Green Tree seeks inter alia

LEONARD D. WEXLER, UNITED STATES DISTRICT that the mortgaged premises be sold, that plaintiff be paid

JUDGE monies owed from the proceeds of the sale, and that Aaron

Cohen “be adjudged to pay any deficiency which may

*1 Plaintiff Aaron Cohen (“Cohen” or “Plaintiff”)

remain.” Foreclosure Compl., Wherefore Cl.

commenced this action, on behalf of himself and as a putative

class action, alleging violations of the Fair Debt Collection

Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., by B. Complaint in This Action

defendants Ditech Financial LLC (“Ditech”) and Rosicki, The complaint in the case before this Court alleges a

Rosicki & Associates, P.C. (“Rosicki”). Specifically, he seeks single cause of action for violations of two sections of the

statutory damages, attorneys' fees, and costs for violations to § FDCPA. Under § 1692e, “[a] debt collector may not use

1692e and § 1692g(a)(2) of the FDCPA. Currently before the any false, deceptive, or misleading representation or means

Court are each defendant's motion to dismiss pursuant Rule in connection with the collection of any debt.” 15 U.S.C. §

12 (b)(6) of the Federal Rules of Civil Procedure. See Rosicki 1692e. Section 1692g provides in pertinent part as follows:

Motion, Docket Entry (“DE”) [24]; Ditech Motion, DE [29].

For the reasons set forth herein, both motions are granted and (a) Within five days after the initial communication with

the complaint is dismissed. a consumer in connection with the collection of any debt,

a debt collector shall, unless the following information is

contained in the initial communication or the consumer has

... (citing Twombly, 550 U.S. at 555).

(2) the name of the creditor to whom the debt is owed

III. DISCUSSION

15 U.S.C. § 1692g(a)(2).

*3 The FDCPA was enacted “with the aim of eliminating

abusive practices in the debt collection industry.” Jacobson

The basis of Plaintiff's complaint is that the creditor to whom

v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 89 (2d Cir.

the debt was owed at the time of the filing of the foreclosure

2008) (quoting 15 U.S.C. § 1692e). This legislation and its

complaint was Fannie Mae, not Green Tree. Compl. ¶¶ 21-22.

history “emphasize the intent of Congress to address the

Plaintiff claims that defendants violated § 1692e in that they

previously common and severe problem of abusive debt

“falsely stated that Green Tree Loan Servicing LLC was the

collection practices and to protect unsophisticated consumers

creditor to whom the Plaintiff's debt ... was owed when, in

from unscrupulous debt collection tactics.” Ehrich v. Credit

fact, Green Tree Servicing, LLC was not the creditor to whom

Prot. Ass'n, L.P., 891 F. Supp. 2d 414, 415 (E.D.N.Y.

the Plaintiff's debt ... was owed.” Compl. ¶ 31. In addition,

2012) (citations omitted). The FDCPA “focuses on regulating

after making an “initial communication,” neither Rosicki nor

interactions between ‘debt collectors’ and ‘consumers.’ ”

Green Tree advised Plaintiff of the “correct name of the

Ellis v. Solomon and Solomon, P.C., 591 F.3d 130, 134 (2d

creditor to whom the debt is owed.” Compl. ¶ 33.

Cir. 2010). To establish a claim under the FDCPA, a plaintiff

must establish that: (1) he is a person who was the object

II. LEGAL STANDARDS of efforts to collect a consumer debt; (2) the defendant is a

Defendants seek dismissal of the action pursuant to Rule “debt collector”; and (3) the defendant has engaged in some

12(b)(6) for failure to state a claim upon which relief can be act or omission in violation of the FDCPA's requirements.

granted. The standards for analyzing a motion to dismiss are See Scaturro v. Northland Grp., Inc., 16-cv-1314, 2017 WL

well-established. The court must accept the factual allegations 415900, at * (E.D.N.Y. Jan. 9, 2017).

in the complaints as true and draw all reasonable inferences

in favor of the plaintiff. Lundy v. Catholic Health Sys. of The threshold question here is whether the communications

Long Island Inc., 711 F.3d 106, 113 (2d Cir. 2013) (citations at issue, filings during a foreclosure action, constitute an

omitted). The court determines “whether the ‘well-pleaded attempt to collect a debt within the meaning of the FDCPA.

factual allegations,’ assumed to be true, ‘plausibly give rise The FDCPA defines “debt” as “any obligation or alleged

to an entitlement to relief.’ ” Hayden v. Paterson, 594 F.3d obligation of a consumer to pay money arising out of a

150, 161 (2d Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. transaction in which the money, property, insurance, or

662, 679 (2009)). “The plausibility standard is not akin to services which are the subject of the transaction are primarily

a probability requirement, but it asks for more than a sheer for personal, family, or household purposes, whether or not

possibility that a defendant has acted unlawfully.” Iqbal, 556 such obligation has been reduced to judgment.” 15 U.S.C.

U.S at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. § 1692a(5). While the note is a debt, the mortgage “ ‘is a

544, 556 (2007)). type of security interest with real property as the collateral,’

that a lender can take if a debtor does not fulfill a payment

The determination of “whether a complaint states a plausible obligation; it ‘is not a promise to pay a debt.’ ” Hill v. DLJ

claim for relief” is a “context-specific task that requires Mortg. Capital, Inc., 15-CV-3083, 2016 WL 5818540, at *7

the reviewing court to draw on its judicial experience and (E.D.N.Y. Sept. 30, 2016) (quoting Reese v. Ellis, Painter,

common sense.” Iqbal, 556 U.S at 679. A pleading that does Ratterree & Adams, LLP, 678 F.3d 1211, 1216 (11th Cir.

nothing more than recite bare legal conclusions, however, is 2012)). In other words, “[t]he note represents the primary

insufficient to “unlock the doors of discovery.” Iqbal, 556 personal obligation of the mortgagor, and the mortgage is

U.S. at 678-679; see also Twombly, 550 U.S. at 555 (holding merely the security for such obligation.” Copp v. Sands Point

that a “formulaic recitation “formulaic recitation of cause Marina, Inc., 17 N.Y.2d 291, 293, 217 N.E.2d 654, 270

of action's elements will not do. Factual allegations must N.Y.S.2d 599 (1966).

be enough to raise a right to relief above the speculative

level.”). While Rule 8 does not require “detailed factual In recognition of this distinction, a holder of a note secured

allegations,” it does require more than an “unadorned, by a mortgage has two remedies under New York law: “one

see also Westnau Land Corp. v. U.S. Small Bus. Admin., 1 law. Indeed, such a result would violate New York's election

F.3d 112, 115 (2d Cir. 1993) (“under New York law, a creditor of remedies framework. See Boyd v. Jarvis, 74 A.D.2d 937,

is required to elect between the remedies of an action for 937, 426 N.Y.S.2d 142 (3rd Dep't 1980) (rejecting plaintiffs'

money damages on a debt or an equitable action to foreclose attempt to commence a second action at law and noting

a mortgage that secures the debt.”); Wells Fargo Bank, N.A. v. that as they had elected to proceed in equity by seeking

Goans, 136 A.D.3d 709, 24 N.Y.S.3d 386 (2d Dep't N.Y. App. foreclosure, they should have sought a deficiency judgment in

Div. 2016) (“Where a creditor holds both a debt instrument the foreclosure action); see also Wyoming Cty. Bank & Trust

and a mortgage which is given to secure the debt, the creditor Co. v. Kiley, 75 A.D.2d 477, 481, 430 N.Y.S.2d 900, 903 (4th

may elect either to sue at law to recover on the debt, or to sue Dep't 1980) (“when a mortgage-secured creditor commences

in equity to foreclose on the mortgage.”). It is also clear that an equitable action to foreclose its mortgage, the action does

under New York law, a mortgage foreclosure is an equitable not result in a ‘money judgment’ ”).

remedy and an action seeking that relief is equitable in nature.

See 4 B's Realty 1530 CR39, LLC v. Toscano, 818 F. Supp. 2d In any event, under the facts presented in this case, the Court

654, 659 (E.D.N.Y. 2011); see also Notey v. Darien Constr. finds that the purposes of the FDCPA are not furthered by

Corp., 41 N.Y.2d 1055, 364 N.E.2d 833, 396 N.Y.S.2d 169 continuation of this action. Acknowledging the procedures

(1977) (“An action to foreclose a mortgage is, of course, in and protections available in bankruptcy court, the Second

equity”). Circuit has noted that given that “the FDCPA's purpose is

to protect unsophisticated consumers from unscrupulous debt

Courts in this Circuit that have considered whether actions collectors, that purpose is not implicated when a debtor

taken within a foreclosure action constitute debt collection is instead protected by the court system and its officers.”

“have held that ‘the enforcement of a security interest through Simmons v. Roundup Funding, LLC, 622 F.3d 93, (2d Cir.

foreclosure proceedings that do not seek monetary judgments 2010) (internal quotation and citation omitted). Applying the

against debtors is not debt collection for purposes of the same reasoning, a District Court in Connecticut analyzed

FDCPA.’ ” Hill, 2016 WL 5818540, at *7 (quoting Boyd v. Connecticut law and determined that “mortgagors in a

J.E. Robert Co., No. 05-CV-2455, 2013 WL 5436969, at *9 foreclosure proceeding likewise do not need protection from

(E.D.N.Y. Sept. 27, 2013), aff'd on other grounds, 765 F.3d abusive collection methods that are covered under the FDCPA

123 (2d Cir. 2014)). This Court agrees with this reasoning. because the state foreclosure process is highly regulated and

Here, Green Tree elected to commence an action to foreclose court controlled.” Derisme v. Hunt Leibert Jacobson P.C., 880

on the mortgage and the “communications” at issue were F. Supp. 2d 311, 327 (D. Conn. 2012). The same rationale is

made in the context of enforcing its security interest. As such, applicable to foreclosure proceedings in New York courts.

there was no attempt to enforce a debt actionable under the

FDCPA. In the aftermath of the mortgage foreclosure crisis, New York

passed the Foreclosure Prevention and Responsible Lending

*4 Plaintiff argues that the Foreclosure Action does seek a Act which strengthened and added protections for borrowers

money judgment on the “debt” because it seeks a deficiency in jeopardy of losing their homes. Stronger notice provisions

judgment against Cohen in the event that the proceeds of were implemented, covering a variety of circumstances

the sale of the mortgaged property are insufficient to satisfy and intending to protect borrowers. See RPAPL § 1303

the amount owed. Article 13 of the Real Property Actions (requiring “Help for Homeowners in Foreclosure” notice);

and Proceedings Law (“RPAPL”) governs actions to foreclose RPAPL § 1304 (requiring additional notices in connection

a mortgage in New York. It expressly provides that a final with subprime or non-traditional home loans); RPAPL §

judgment in a foreclosure action may include a deficiency 1320 (requiring a special summons in actions to foreclose

judgment against the person liable for the debt secured by a mortgage on private residences). Certain filings with the

the mortgage “of the whole residue, or so much thereof as Superintendent of Financial Services are also required. See

the court may determine to be just and equitable, of the debt RPAPL § 1306. The parties are now required to participate

remaining unsatisfied, after a sale of the mortgaged property in mandatory, court-supervised settlement proceedings at

and the application of the proceeds.” RPAPL § 1371(1). which they Eire required to “negotiate in good faith to

Plaintiff cites no case law to support the inference that this reach a mutually agreeable resolution, including but not

provision somehow affects the nature of the Foreclosure limited to a loan modification, short sale, deed in lieu of

§ 3408. The New York court system can amply protect is closed.

borrowers from any allegedly unscrupulous actions taken in

the foreclosure proceeding. Accordingly, the purposes of the SO ORDERED.

FDCPA are not implicated, especially where all the allegedly

impermissible conduct occurred within the context of the All Citations

foreclosure proceeding.

Not Reported in Fed. Supp., 2017 WL 1134723

IV. CONCLUSION

Footnotes

1 The facts are taken from the Complaint and from documents related to the state court foreclosure action. See

Curtis & Assocs., P.C. v. Law Offices of David M. Bushman, Esq., 758 F. Supp. 2d 153, 158 n.4 (E.D.N.Y.

2010) (In deciding a motion to dismiss, the Court may, in addition to the complaint, consider documents

incorporated by reference into the complaint as well as “documents submitted by the parties which are matters

of public record or which are deemed included in the Complaint.”), aff'd, 443 Fed.Appx. 582 (2d Cir. 2011).

2 Ditech notes that Green Tree changed its name to Ditech effective August 31, 2015, see Ditech Memorandum

of Law in Support at n.1, DE [30], a change acknowledged by Plaintiff in the complaint. See Compl. ¶ 18

(“Green Tree (which is now Ditech) ...”).

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

2023 WL 167559 debt and contracted with Defendant Sequium to collect the

Only the Westlaw citation is currently available. debt originally owed to Citibank and now owed to Defendant

United States District Court, S.D. New York. LVNV. (Id. at ¶¶ 19, 23.)

Lazar FELBERBAUM, Plaintiff, On or around December 4, 2020, Defendants sent Plaintiff

v. a collection letter (the “Letter”) regarding the alleged debt,

SEQUIUM ASSET SOLUTIONS and which read as follows:

LVNV Funding LLC, Defendants.

This notice is being sent to you by a collection

21-cv-9513 (NSR) agency. Please be advised that LVNV Funding LLC,

| the Current Creditor-Debt Purchaser, has purchased the

Signed January 11, 2023 account referenced above. Our records further indicate that

the judgment that was awarded on 12/13/2013 remains

Attorneys and Law Firms unresolved. This is the date on which the balance became

due.

Eliyahu R. Babad, Stein Saks, PLLC, Hackensack, NJ, for

Plaintiff. (Id. at ¶ 24, Ex. A.)

Brendan Hoffman Little, Lippes Mathias LLP, Buffalo, NY, The judgment referenced in the Letter totaled $27,212.94. (Id.

for Defendants. at ¶ 25, Ex. A.) The Letter stated a “Total Due” in the amount

of $27,212.94 (id. at ¶ 26.), but the Letter did not state whether

interest was accruing on this amount (id. at ¶¶ 27–29.). In the

OPINION & ORDER Letter, Defendants offered to settle the existing debt for 65%

of the “Total Due.” (Id. at ¶ 45.) Defendants, however, did

NELSON S. ROMÁN, United States District Judge: not (1) include a deadline by which Plaintiff had to accept the

offer or (2) otherwise state that the offer would expire at a

*1 Plaintiff Lazar Felberbaum (“Plaintiff”) commenced the later unspecified date. (Id. at ¶¶ 46–47.)

instant action against Defendants Sequium Asset Solutions,

LLC (“Defendant Sequium”) and LVNV Funding LLC Plaintiff alleges the “amount stated as due is ... false,

(“Defendant LVNV”) (collectively, “Defendants”) alleging deceptive, misleading, and unfair.” (Id. at ¶ 39.) In particular,

claims arising under the Fair Debt Collection Practices Plaintiff asserts that Defendants did not disclose that interest

Act, 15 U.S.C. § 1692, et seq. (“FDCPA”). (Complaint was accruing on the balance at the New York post-judgment

(“Compl.”) (ECF No. 1).) Before the Court is Defendants’ rate of “nine per centum per annum.” (Id. at ¶ 31.) As a

motion pursuant to Federal Rule of Civil Procedure 12(c) result, the actual amount due was $49,051.33.1 (Id. at ¶

for judgment on the pleadings. For the following reasons,

33.) Plaintiff further avers that Defendants would “not have

Defendants’ motion is GRANTED, and Plaintiff's Complaint

allowed Plaintiff to accept the settlement offer at any time”

is dismissed.

and would “refuse to honor the offer” should Plaintiff accept.

(Id. at ¶¶ 49, 57.) The offer, alleges Plaintiff, was “illusory”

and “merely a collection tactic” “to coerce” Plaintiff into

BACKGROUND paying the debt or to “sow ... confusion.” (Id. at ¶ 62–63.)

The following facts are derived from the Complaint and are *2 Defendants answered the Complaint (ECF Nos. 9 & 11)

accepted as true for the purposes of this motion except as and now move for judgment on the pleadings pursuant to Rule

otherwise noted. 12(c) of the Federal Rules of Civil Procedure. (ECF No. 19.)

Plaintiff is a New York resident who “allegedly” incurred a Defendants also move to strike Plaintiff's sur-reply (ECF

debt to non-party Citibank, N.A. (“Citibank”), which arose No. 24), which Plaintiff styled as a “Notice of Supplemental

primarily out of personal credit transactions. (Compl. at ¶¶ 7, Authority” and filed in opposition to Defendants’ Rule 12(c)

16.) The debt became “deliquen[t]” on January 15, 2009. (Id.

Practices in Civil Cases, this Court nonetheless DENIES pleaded allows a court “to draw the reasonable inference that

Defendant's Motion to Strike Plaintiff's Sur-Reply and deems the defendant is liable for the misconduct alleged.” Id. at 678.

Plaintiff's sur-reply papers accepted for the purposes of

adjudicating the present Rule 12(c) motion.

DISCUSSION

LEGAL STANDARDS *3 The purpose of the FDCPA is to “eliminate abusive debt

collection practices by debt collectors, to insure that those

Under Federal Rule of Civil Procedure 12(c), “[a]fter the debt collectors who refrain from using abusive debt collection

pleadings are closed—but early enough not to delay trial—a practices are not competitively disadvantaged, and to promote

party may move for judgment on the pleadings.” Fed. R. Civ. consistent State action to protect consumers against debt

P. 12(c).2 “To survive a Rule 12(c) motion, the complaint collection abuses.” 15 U.S.C. § 1692e. To achieve this, the

must contain sufficient factual matter to ‘state a claim to relief FDCPA imposes, “among other things, certain notice and

that is plausible on its face.’ ” Graziano v. Pataki, 689 F.3d timing requirements on efforts by ‘debt collectors’ to recover

110, 114 (2d Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, outstanding obligations.” Goldstein v. Hutton, Ingram, Yuzek,

550 U.S. 544, 570 (2007)). The standard for analyzing a Gainen, Carroll & Bertolotti, 374 F.3d 56, 58 (2d Cir. 2004).

motion for judgment on the pleadings under Rule 12(c) is Section 1692k of the FDCPA provides that “any debt collector

identical to the standard for a motion to dismiss for failure who fails to comply with any provision of [the FDCPA] with

to state a claim under Rule 12(b)(6). Cleveland v. Caplaw respect to any person is liable to such person....” 15 U.S.C.

Enters., 448 F.3d 518, 521 (2d Cir. 2006); see also Fed. R. § 1692k.

Civ. P. 12(b)(6).

Moreover, a single violation is sufficient to establish liability

Under Rule 12(b)(6), the inquiry is whether the complaint under the FDCPA. Wiener v. Bloomfield, 901 F. Supp.

“contain[s] sufficient factual matter, accepted as true, to ‘state 771, 778 (S.D.N.Y. 1995) (citing Clomon v. Jackson, 988

a claim to relief that is plausible on its face.’ ” Ashcroft F.2d 1314, 1318 (2d Cir. 1993)). “The court considers

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 the frequency or number of violations only in calculating

U.S. at 570); accord Hayden v. Paterson, 594 F.3d 150, damages.” Id. (citing 15 U.S.C. § 1692k(b)(1)). “The court

160 (2d Cir. 2010). “While legal conclusions can provide may not, however, regardless of the number of violations,

the framework of a complaint, they must be supported impose more than the $1,000 statutory penalty provided for

by factual allegations.” Id. at 679. To survive a motion actions such as these in the absence of actual damages.” Id.

to dismiss, a complaint must supply “factual allegations (citing 15 U.S.C. § 1692k(a)(2)(A)).

sufficient ‘to raise a right to relief above the speculative

level.’ ” ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d To state a claim under the FDCPA, a plaintiff must

87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555). demonstrate that: (1) the plaintiff is a person who was the

The Court must take all material factual allegations as true object of efforts to collect a consumer debt; (2) the defendant

and draw reasonable inferences in the non-moving party's is a debt collector as defined in the statute; and (3) the

favor, but the Court is “ ‘not bound to accept as true a legal defendant has engaged in an act or omission in violation of

conclusion couched as a factual allegation,’ ” or to credit the FDCPA.3 See Cohen v. Ditech Fin. LLC, 15-CV-6828,

“mere conclusory statements” or “[t]hreadbare recitals of the 2017 WL 1134723, at *3 (E.D.N.Y. Mar. 24, 2017). Plaintiff

elements of a cause of action.” Iqbal, 556 U.S. at 678 (quoting alleges that Defendants violated Sections 1692e, 1692e(2),

Twombly, 550 U.S. at 555). Likewise, “where a conclusory e(10), 1692f, and 1692g of the FDCPA. See Compl. ¶¶ 79–

allegation in the complaint is contradicted by a document 93. For the reasons articulated below, the Court dismisses all

attached to the complaint, the document controls and the of Plaintiff's claims.

allegation is not accepted as true.” Amidax Trading Grp. v.

S.W.I.F.T. SCRL, 671 F.3d 140, 146–47 (2d Cir. 2011). In Section 1692e of the FDCPA prohibits a debt collector from

determining whether a complaint states a plausible claim for making a “false, deceptive, or misleading representation.” 15

relief, a district court must consider the context and “draw on U.S.C. § 1692e. In particular, Section 1692e(2) prohibits “the

false representation or deceptive means to collect or attempt settlement offer are not misled by the failure to disclose

to collect any debt or to obtain information concerning a that interest is accruing because ... payment of the amount

consumer.” “It is well established that the FDCPA imposes indicated in a collection notice would extinguish the debt.”

strict liability on debt collectors,” meaning that Plaintiff “need Cortez v. Forster & Garbus, LLP, 999 F.3d 151, 155 (2d

not prove that the prohibited conduct was intentional.” Lee Cir. 2021). In so doing, the Second Circuit concluded “a

v. Kucker & Bruh, LLP, 958 F. Supp. 2d 524, 528 (S.D.N.Y. settlement offer need not enumerate the consequences of

2013); Ellis v. Solomon & Solomon, P.C., 591 F.3d 130, 135 failing to meet its deadline or rejecting it outright so long

(2d Cir. 2010) (“To recover damages under the FDCPA, a as it clearly and accurately informs a debtor that payment

consumer does not need to show intentional conduct on the of a specified sum by a specified date will satisfy the debt.”

part of the debt collector.”); Russell v. Equifax A.R.S., 74 Id. at 156. At first glance, the Second Circuit's reasoning

F.3d 30, 33 (2d Cir. 1996) (“Because the Act imposes strict in Cortez appears to control the result in the instant case;

liability, a consumer need not show intentional conduct by the here, as in Cortez, Defendants offered to settle the debt for

debt collector to be entitled to damages.”). a percentage of the amount shown as due and owing. If

Plaintiff availed himself of Defendants’ settlement offer, his

In the Second Circuit, two principles of statutory construction “payment ... would extinguish the debt.” Id. at 155.

guide courts’ assessments of alleged violations of Section

1692e: (1) the FDCPA is liberally construed to effectuate its In his sur-reply, Plaintiff argues Cortez is inapplicable

purpose of consumer protection, and (2) collection notices because the offer letter at issue in Cortez included a specific

are analyzed from the perspective of the “least sophisticated date by which the debtor needed to avail himself of the offer.

consumer.” Taylor v. Fin. Recovery Servs., 886 F.3d 212, (ECF No. 23-1 at 1–2.) In effect, including a specific date

214 (2d Cir. 2018) (internal citation omitted). The least in the offer notified the debtor as to how long the offer

sophisticated consumer test is an objective one that “pays would remain open. By not including a specific date in the

no attention to the circumstances of the particular debtor in Letter, Plaintiff contends the Defendants were employing

question.” Easterling v. Collecto, Inc., 692 F.3d 229, 234 a “coercive collection tactic” in which Defendants would

(2d Cir. 2012). Despite the name, the least sophisticated “not honor” Plaintiff's acceptance of their offer. (Id. at 2.)

consumer is not wholly unsophisticated; they are “presumed Plaintiff alleges as much in the Complaint, asserting that

to possess a rudimentary amount of information about the Defendants would not have honored Plaintiff's acceptance of

world and a willingness to read a collection notice with some their settlement offer in 1, 5, 10, 20, or 50 years. (Compl. at ¶¶

care.” Kolbasyuk v. Capital Mgmt. Servs. LP, 918 F.3d 236, 49–54.) In other words, Plaintiff is concerned he will pay the

239 (2d Cir. 2019) (internal quotations and citation omitted). settlement amount and then later find out Defendants (or their

Applying the standard of the least sophisticated consumer, successors) have pocketed the payment without discharging

a debt collector's representation is misleading or deceptive Plaintiff's debt. (See id. at ¶¶ 57–63.) Plaintiff concludes

“if it is ‘open to more than one reasonable interpretation, Defendants’ offer is “illusory” (id. at ¶ 62), and thus the Letter

at least one of which is inaccurate.’ ” Avila v. Riexinger “violates the FDCPA.” (ECF No. 23-1 at 2; see generally

& Assocs., LLC, 817 F.3d 72, 75 (2d Cir. 2016) (quoting Compl.)

Clomon v. Jackson, 988 F.2d 1314, 1319 (2d Cir. 1993)).

There is also a materiality requirement, where courts focus Plaintiff is incorrect. The Second Circuit in Cortez did not

on “whether the false statement would frustrate a consumer's establish a bright line rule that every settlement offer must

ability to intelligently choose his or her response.” Cohen v. include a specific deadline for acceptance. The Cortez Court

Rosicki, Rosicki & Assocs., P.C., 897 F.3d 75, 86 (2d Cir. was not concerned with whether the offer included a specific

2018) (“[M]ere technical falsehoods that mislead no one are acceptance date; instead, it was concerned with whether the

immaterial and consequently not actionable under § 1692e.”) settlement offer would mislead a debtor because “the offer

(internal quotations and citations omitted). set forth a payment deadline but failed to disclose whether

interest or fees would accrue if payment were tendered after

*4 Before this Court is a narrow question: whether a debt the deadline.” Cortez, 999 F.3d at 156 (emphasis added).

collector violates the FDCPA when it fails to state that the Ultimately, the Court reasoned that a settlement offer “need

interest clock is (or is not) running when offering to settle a not enumerate” post-deadline interest and fees so long as the

debt for a sum certain. The Second Circuit recently addressed offer “clearly and accurately informs a debtor that payment

Id. Put differently, so long as the offer has not lapsed and Contracts § 42 (1981)). Because Defendants cannot revoke

a debtor is entitled to pay a specified sum to satisfy a debt, the offer without first giving Plaintiff notice of their intent

a debt collector is not bound to “anticipate every potential to do so, the Letter is not misleading. In fact, the Letter

collateral consequence that could arise in connection with the “clearly states that the holder of the debt will accept payment

payment or nonpayment of a debt.” See id.; Avila v. Riexinger of the amount set forth in full satisfaction of the debt if

& Assocs., LLC, 817 F.3d 72, 77 (2d Cir. 2016) (“We hold that payment is made by a specified date,”—here any date prior

a debt collector will not be subject to liability under Section to Defendants giving notice of their intent to revoke the offer.

1692e for failing to disclose that the consumer's balance may See Avila, 817 F.3d at 77; see also Weiss v. Sequium Asset

increase due to interest and fees if the collection notice ... Sols., LLC, No. 21-CV-218(EK)(TAM), 2022 WL 1046260,

clearly states that the holder of the debt will accept payment of at *3 (E.D.N.Y. Apr. 7, 2022) (“Indeed, the open-ended offer

the amount set forth in full satisfaction of the debt if payment from the Defendants was more generous to [Plaintiff] than the

is made by a specified date.”); Altman v. J.C. Christensen & defined expiration in Cortez, in that it gave [Plaintiff] longer

Assocs., Inc., 786 F.3d 191, 194 (2d Cir. 2015) (“The Letter than Mr. Cortez was afforded to accept the settlement offer.”).

at issue here plainly states that the percentage saved is ‘on In sum, Defendants’ offer remains open, and Plaintiff is still

your outstanding account balance.’ The fact that a debtor entitled to pay $27,212.94—a sum certain—to extinguish all

may then have to pay tax on the amount saved is simply not debts associated with his account.

deceptive in the context of what the savings are on a debtor's

outstanding account balance.”) (internal quotations omitted); Plaintiff's claim under Section 1692e fails. So too do

see also Taylor v. Fin. Recovery Servs., Inc., 886 F.3d 212, Plaintiff's claims under Sections 1692f and 1692g. Section

215 (2d Cir. 2018) (“Construing the FDCPA in light of its 1692f prohibits a debt collector from using “unfair

consumer protection purpose, we hold that a collection notice or unconscionable means to collect or attempt any

that fails to disclose that interest and fees are not currently debt.” “Unconscionable” here means “shockingly unjust

accruing on a debt is not misleading within the meaning of or unfair” or “affronting the sense of justice, decency, or

Section 1692e.”). reasonableness.” Gallego v. Northland Group, Inc., 814 F.3d

123, 127–28 (2d Cir. 2016). Meanwhile, Section 1692g

*5 Here, Defendants’ offer remains open, and as a result, requires Defendants to state “the amount of the debt.” For

Defendants have no present duty to inform Plaintiff of the the reasons stated above, Plaintiff's allegations fail to show

amount of interest due on the account.4 Plaintiff does not Defendants’ collection notice containing an open offer—

allege the settlement offer is closed at present. Instead, which has remained open for over two years and settles

Plaintiff speculates that Defendants, who “retain[ ] the right Plaintiff's debt interest-free at a sum certain—is “[s]hockingly

to rescind the settlement offer at any time,” “would not have unjust or unfair,” or “affronting the sense of justice, decency,

allowed Plaintiff to accept the settlement offer.” (Compl. at or reasonableness.” Id. Accordingly, Defendants’ Letter does

¶¶ 48–61.) Plaintiff's allegations, however, are speculative not violate Section 1692f.

and incorrect as a matter of law. Should Plaintiff accept

Defendants’ offer by paying the specified sum, Defendants Insofar as Defendants’ offer remains open and represents

cannot then revoke their offer.5 See Altman v. Zwicker & the sum certain owed by Plaintiff to extinguish the debt,

Defendants also abide by the requirements of Section 1692g.

Assocs., P.C., No. 20 CV 6622 (VB), 2021 WL 3774120,

See Weiss, 2022 WL 1046260, at *4 (E.D.N.Y. Apr. 7,

at *4 (S.D.N.Y. Aug. 25, 2021) (“In other words, defendant

2022) (finding Defendants “comport[ed]” with requirements

could not have withdrawn the offer of sending an application

of Section 1692g where Defendants extended an open offer

if the consumer paid the allegedly outstanding debt without

for Plaintiff to pay a specified amount to extinguish Plaintiff's

communicating such withdrawal to the consumer.”). Until

debt).

such time as Plaintiff accepts Defendants’ offer by paying

the specified sum, Defendants may revoke the offer, but

only if they first give unambiguous notice of revocation to

Plaintiff. See, e.g., Cumis Ins. Soc., Inc. v. Citibank, N.A., CONCLUSION

921 F. Supp. 1100, 1106 (S.D.N.Y. 1996) (“A revocation

is a clear manifestation of an intent not to perform, and

judgment on the pleadings is GRANTED. Defendants’ All Citations

motion to strike Plaintiff's sur-reply is DENIED. Not Reported in Fed. Supp., 2023 WL 167559

Footnotes

1 This estimated balance represents the accrued interest as of November 17, 2021, when Plaintiff filed the

Complaint. (Compl. at ¶ 33.)

2 Defendant Sequium attaches two exhibits to its answer. (See ECF Nos. 9-1 (Declaration of Shaun Ertischek)

& 9-2 (Declaration of Patricia Sexton).) Because Plaintiff had no notice of the exhibits prior to their filing, this

Court declines to consider them in adjudicating the present 12(c) motion. See L-7 Designs, Inc. v. Old Navy,

LLC, 647 F.3d 419, 422 (2d Cir. 2011) (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 44 (2d

Cir. 1991) (“Plaintiffs’ failure to include matters of which as pleaders they had notice and which were integral

to their claim—and that they apparently most wanted to avoid—may not serve as a means of forestalling the

district court's decision on [a 12(b)(6)] motion.”) (emphasis added)).

3 Plaintiff adequately alleges the first two requirements. (See Compl. at ¶¶ 8–13, 23.)

4 Defendants’ duty to report interest attaches when (1) Defendants revoke the open offer to accept payment

of a sum certain to extinguish the debt, and (2) Defendants indeed charge interest on the principal balance.

See Avila, 817 F.3d at 76 (“Because the statement of an amount due, without notice that the amount is

already increasing due to accruing interest or other charges, can mislead the least sophisticated consumer

into believing that payment of the amount stated will clear her account, we hold that the FDCPA requires debt

collectors, when they notify consumers of their account balance, to disclose that the balance may increase

due to interest and fees.”). In any event, it appears Defendants are estopped from charging interest on the

balance-to-date. (See ECF No. 9-1 (Declaration of Shaun Ertischek) & 9-2 (Declaration of Patricia Sexton).)

5 Plaintiff alleges Defendant Sequium acts “on behalf of Defendant LVNV.” (See Compl. at ¶ 23.) As such,

Defendant LVNV is bound to honor the contract proposed to Plaintiff by Defendant Sequium on Defendant

LVNV's behalf. See, e.g., Minskoff v. Am. Exp. Travel Related Servs. Co., 98 F.3d 703, 708 (2d Cir. 1996)

(“Under general principles of agency, the authority of an agent is the power of the agent to do an act or to

conduct a transaction on account of the principal which, with respect to the principal, he is privileged to do

because of the principal's manifestations to him.”) (internal quotations omitted).

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

2022 WL 902370 See Doc. 45. On February 12, 2021, the Court granted

Only the Westlaw citation is currently available. Defendants’ motion, dismissing Karunakaran's federal claims

United States District Court, S.D. New York. without prejudice to replead, and declining to exercise

supplemental jurisdiction over Karunakaran's NYSHRL and

Chitra KARUNAKARAN, Plaintiff, NYCHRL claims. See Doc. 55. On March 26 and 27,

v. 2021, Karunakaran's counsel filed letter motions seeking to

BOROUGH OF MANHATTAN COMMUNITY withdraw. See Docs. 57-58. The Court granted counsel's

COLLEGE, City University of New York, Antonio requests to withdraw. See Doc. 59.

Perez, Karin Wilks, Sangeeta Bishop, Rifat Salam,

On April 30, 2021, Karunakaran, again proceeding pro se,

Antionette McKain, Robert Diaz, Ian Wentworth,

filed a second amended complaint (“SAC”). See Doc. 62.

Michael Hutmaker, and Marva Craig, Defendants.

Defendants now move to dismiss the SAC pursuant to Federal

18 Civ. 10723 (ER) Rule of Civil Procedure 12(b)(6). For the reasons discussed

| below, the motion is GRANTED.

Signed 03/28/2022

I. BACKGROUND

Attorneys and Law Firms

Karunakaran, a 75-year-old Indian woman, was employed by

Chitra Karunakaran, New York, NY, Pro Se. CUNY at BMCC for approximately 20 years as a professor

of psychology and sociology. Doc. 62 ¶¶ 13, 37. Karunakaran

Jack Kevin Shaffer, IRS Office of Chief Counsel, New York, alleges that on February 27, 2018, a student (the “Student”) in

NY, for Defendants Antonio Perez, Sangeeta Bishop, Rifat her class became verbally and physically aggressive towards

Salam, Antionette McKain, Robert Diaz, Ian Wentworth, her and disrupted class. Id. ¶ 41. Specifically, Karunakaran

Borough of Manhattan Community College, City University alleges that the Student told her, “You suck. You don't

of New York, Karin Wilks, Michael Hutmaker, Marva Craig. know anything.” Id. ¶ 42. According to Karunakaran, the

Student repeated these comments on two other occasions.

Id. Karunakaran argues that the Student's behavior was

OPINION AND ORDER racially motivated because, when she had previously taught

the Student in online classes, the Student had not been

Ramos, D.J.: disruptive. Id. Karunakaran also argues that the Student relied

on “prevailing racialized stereotypes ... about Asians” and

*1 Chitra Karunakaran, who was a Professor at the Borough

assumed Karunakaran would remain silent “in the face of her

of Manhattan Community College (“BMCC”), which is part

mocking verbal abuse” and would not confront her or call

of the City University of New York (“CUNY”), brings this

security. Id. at 23.

action against CUNY, BMCC, and several current and former

employees of BMCC1 (collectively, the “Defendants”), Karunakaran alleges she complained to Defendants about

for violation of Title VII of the Civil Rights Act of the Student's behavior, and, in particular, that in emails to

1964 (“Title VII”), the Age Discrimination in Employment Defendants, she offered to speak with the Student, suggested

Act (“ADEA”), the New York State Human Rights Law that the Student take her class online, and requested that

(“NYSHRL”), and the New York City Human Rights Law BMCC's Office of Student Affairs remove the Student

(“NYCHRL”). See Doc. 62. In particular, Karunakaran from her class. Id. ¶¶ 42, 43. According to Karunakaran,

alleges that Defendants discriminated against her on the basis Defendants did not respond to her emails and did not

of her race, national origin, and age, and retaliated against her. otherwise intervene to address the Student's behavior. Id.

See id. Specifically, Karunakaran alleges Defendant Ian Wentworth,

who at the time worked in the Office of Student Affairs, took

Karunakaran, proceeding pro se, first filed her complaint no action in response to the Student's behavior and in so doing

on November 15, 2018. See Doc. 2. On September 6, allowed the behavior to re-occur. Id. ¶ 43.

2019, after retaining counsel, Karunakaran filed an amended

“A Hostile Work Environment,” with Defendant Antonio As stated above, Karunakaran filed a pro se complaint in this

Perez, who was at the time President of BMCC. Id. ¶¶ Court on November 15, 2018. Doc. 2. With the assistance

18, 49; Doc. 2 at 19. In her complaint, Karunakaran of counsel, she filed an FAC on September 6, 2019. Doc.

alleged that BMCC maintained a “covert, ad hoc/post hoc 7. Defendants moved to dismiss the FAC on May 7, 2020,

mode of organizational dysfunction resulting in a generally and the Court granted Defendants’ motion on February

unchallenged racialized, ageist hostile work environment for 12, 2021, dismissing Karunakaran's federal claims without

contingent academic labor.” Doc. 2 at 19. prejudice to replead, and declining to exercise supplemental

jurisdiction over Karunakaran's NYSHRL and NYCHRL

Karunakaran alleges that on March 27, 2018, the Student, claims. See Docs. 45, 55. On April 30, 2021, Karunakaran

after learning she had failed the midterm, tried to grab papers —again proceeding pro se—filed the instant complaint.,

and other materials from her and ran from her office. Doc. alleging substantially the same facts she alleged in her FAC.

62 ¶ 45. Karunakaran alleges she continued to complain to

Defendants about the Student's conduct but, as before, they

took no action. Id. ¶ 46. Karunakaran argues that Defendants, II. LEGAL STANDARD

in “completely disregarding their job responsibilities ... and When ruling on a motion to dismiss pursuant to Rule 12(b)

at no point attempting to remedy the ongoing and dangerous (6), district courts are required to accept as true all factual

situation caused by [the] Student,” discriminated against her allegations in the complaint and to draw all reasonable

on the basis of her race, national origin, and age. Id. ¶ 47. inferences in the plaintiff's favor. Walker v. Schult, 717 F.3d

119, 124 (2d Cir. 2013). However, this requirement does

Karunakaran also alleges that she participated in various not apply to legal conclusions, bare assertions, or conclusory

whistleblowing and union activities throughout her tenure, id. allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678, 681 (2009)

¶¶ 40, 52, and lists a number of examples of these activities. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

Id. at 50. Specifically, Karunakaran alleges that she emailed In order to satisfy the pleading standard set forth in Rule 8,

Perez to encourage him to program every department printer a complaint must contain sufficient factual matter to state

to print double-sided; she asked Perez why online classes a claim for relief that is plausible on its face. Iqbal, 556

could not be taught through “Peer faculty mentoring;” she U.S. at 678 (citing Twombly, 550 U.S. at 570). Accordingly,

asked Defendant Sangeeta Bishop whether she could serve on a plaintiff is required to support her claims with sufficient

an equity and inclusion task force but was told that adjunct factual allegations to show “more than a sheer possibility that

professors were not included; she asked whether faculty a defendant has acted unlawfully.” Id. “Where a complaint

needed to include attendance information in their syllabi; she pleads facts that are merely consistent with a defendant's

complained about Defendants’ failure to manage the Student's liability, it stops short of the line between possibility and

conduct; and she asked why hard copies of mail had not been plausibility of entitlement to relief.” Id. (quoting Twombly,

delivered to BMCC's uptown campus. Id. at 50-51. 550 U.S. at 557) (internal quotation marks omitted).

On May 11, 2018, Karunakaran was denied reappointment *3 “Because [Karunakaran] is a pro se litigant, we read h[er]

for the Fall 2018 semester. Id. ¶¶ 39, 51. Karunakaran argues supporting papers liberally, and will interpret them to raise the

this denial resulted from discrimination and retaliation on strongest arguments that they suggest.” Burgos v. Hopkins,

the basis of her race, national origin, and age. Id. ¶ 40. 14 F.3d 787, 790 (2d Cir. 1994). When a plaintiff's claims

Karunakaran alleges that she was replaced by a younger involve civil rights violations, the Court applies this standard

professor with “less age-defined seniority ... [and] possibly “with particular force.” Jackson v. NYS Dep't of Lab., 709

without a doctorate....” Id. at 39-40. F. Supp. 2d 218, 224 (S.D.N.Y. 2010) (citing McEachin v.

McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)). “However,

On August 13, 2018, Karunakaran filed a charge of even pro se plaintiffs asserting civil right claims cannot

discrimination with the New York State Division of Human withstand a motion to dismiss unless their pleadings contain

Rights. Id. ¶ 3. The charge was subsequently sent to the factual allegations sufficient to raise a ‘right to relief above

Equal Employment Opportunity Commission (“EEOC”), and the speculative level.’ ” Id. (quoting Twombly, 550 U.S. at

on August 21, 2018, the EEOC issued a Right to Sue letter. 555). Lastly, “[a] district court deciding a motion to dismiss

Id. ¶ 4. may consider factual allegations made by a pro se party in his

(S.D.N.Y. 2011). Conclusory or naked allegations will not do.

III. DISCUSSION See id.

a. Title VII and ADEA Claims Here, as was the case in her first amended complaint,

Karunakaran fails to plead allegations that support a minimal

inference of discriminatory motivation. As Defendants point

i. Discrimination out, Karunakaran's SAC “suffers from the same flaws” as

Karunakaran alleges that Defendants discriminated against her FAC. See Doc. 69 at 10. Again, beyond conclusory

her when they failed to address the Student's behavior statements that she was denied reappointment as a result

and when they denied her reappointment. Doc. 62 ¶¶ 47, of discrimination, Karunakaran does not allege any specific

55. Karunakaran also alleges Defendants treated her less facts showing that the denial was related to discrimination

favorably than similarly situated co-workers. Id. ¶ 55. on the basis of her race, national origin, or age. See, e.g.,

Marcus v. Leviton Mfg. Co., 661 F. App'x 29, 32-33 (2d Cir.

Discrimination claims under Title VII or the ADEA are 2016) (“plaintiff must supply sufficient factual material, and

analyzed under the three-step burden-shifting framework set not just legal conclusions, to push the misconduct alleged

forth by the Supreme Court in McDonnell Douglas Corp. in the pleading beyond he realm of the ‘conceivable’ to the

v. Green, 411 U.S. 792 (1973). See Kovaco v. Rockbestos- ‘plausible’ ”).

Surprenant Cable Corp., 834 F.3d 128, 136 (2d Cir. 2016).

Under the McDonnell framework, a plaintiff first must *4 Beyond this, Karunakaran again does not provide any

information about similarly situated employees. When a

establish a prima facie case of discrimination. McDonnell,

plaintiff seeks to meet her prima facie case by reference

411 U.S. at 802. Once the plaintiff establishes a prima facie

to the disparate treatment of an allegedly similarly situated

case, the burden shifts to the defendant to offer a legitimate,

employee, “the plaintiff must show that she shared sufficient

nondiscriminatory reason for its actions. Id. at 802-03. If the

employment characteristics with that comparator so that

defendant satisfies its burden, the burden shifts back to the

they could be considered similarly situated.” McGuinness v.

plaintiff to demonstrate that the proffered reason is pretextual.

Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001). A plaintiff

Id. at 804. Ultimately, the plaintiff will be required to prove

need not show that a comparator was an “identically situated

that the defendant acted with discriminatory motivation. See

employee,” just that she was “similarly situated in all material

Littlejohn v. City of New York, 795 F.3d 297, 307 (2d Cir.

2015). At the pleading stage, however, the facts alleged must respects.” Id. at 53-4 (quoting Shumway v. United Parcel

merely “give plausible support to the reduced requirements Service, 118 F.3d 60, 64 (2d Cir. 1997)) (emphasis in

that arise under McDonnell Douglas in the initial phase of ... original). Further, such employee “must have a situation

sufficiently similar to plaintiff's to support at least a minimal

litigation.” Id. at 311. Thus, the question on a motion to

inference that the difference of treatment may be attributable

dismiss is whether the plaintiff has adequately pleaded a

to discrimination.” Kearney v. ABN AMRO, Inc., 738 F.

prima facie case.

Supp. 2d. 419, 426 (S.D.N.Y. Sept. 15, 2010) (quoting

McGuinness, 263 F. 3d at 54) (internal quotation marks

To establish a prima facie case of discrimination under

omitted). Employment characteristics which can support

either Title VII or the ADEA, a plaintiff must show that

a finding that two employees are “similarly situated”

(1) she belonged to a protected class, (2) she was qualified

include “similarities in education, seniority, performance,

for the position, (3) she suffered an adverse employment

action, and (4) the adverse employment action occurred under and specific work duties,” DeJesus v. Starr Technical Risks

circumstances giving rise to an inference of discriminatory Agency, Inc., 03 Civ. 1298 (RJH), 2004 WL 2181403, at *9

intent. See Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d. Cir. (S.D.N.Y. Sept. 27, 2004), and similar requirements for skill,

2003). Although a plaintiff is not required to plead facts effort, and responsibility for jobs performed “under similar

proving each element of a prima facie case of discrimination working conditions.” DeJohn v. Wal-Mart Stores E., LP, 09

at the pleading stage, her allegations must provide “plausible Civ. 01315 (GTS), 2013 WL 1180863, at *6 (N.D.N.Y. Mar.

support” for a “minimal inference” that the employer was 20, 2013).

motivated by discriminatory intent.” Littlejohn, 795 F.3d at

to dismiss, the Court noted that Karunakaran's general *5 Because, as Defendants argue, Karunakaran does

allegations that she was treated less favorably than certain not submit any allegations to support an inference that

similarly situated employees were insufficient “without ... Defendants’ failure to address the Student's behavior and

additional details about specific events and without ... denial of her reappointment were at all motivated by her race,

additional facts that [she] was similarly situated in all material national origin, or age, her federal discrimination claims are

respects to those comparator employees.” Doc. 55 at 9-10. dismissed.

While given another opportunity to do so, Karunakaran again

does not provide these specifics. Karunakaran merely re-

alleges, upon information and belief, that she was replaced

ii. Retaliation Claims

by a younger professor. She does not identify or otherwise

describe this professor, nor does she provide any facts alleging Karunakaran alleges Defendants retaliated against her

that she and this professor were similarly situated in any for her participation in a protected activity. Doc. 62

material respect or that she was treated less well than this at 14. Specifically, she alleges Defendants denied her

professor. reappointment because of her “persistent participation in

lawful union activity” and because of her “whistleblower

In addition, in a purported attempt to remedy the deficiencies queries.” Id. ¶ 40.

in her FAC, Karunakaran explains that all her former co-

workers are her comparators: “All faculty regardless of Like her discrimination claims, Karunakaran's retaliation

appointment, are comparators.” Doc. 62 at 17. But, again, claims also are analyzed under the McDonnell framework.2

she does not explain how she was similarly situated to all

Under that framework, a plaintiff first must establish a prima

faculty members. That they teach the same students, as

facie case of retaliation. McDonnell, 411 U.S. at 802. Once

Karunakaran alleges, is not enough. See id. Nor does she

the plaintiff establishes a prima facie case, the burden shifts

offer specific examples of disparate treatment with respect to

to the defendant to offer a legitimate, nonretaliatory reason

these co-workers. While Karunakaran generally alleges that

for its actions. Id. at 802–03; Kirkland v. Cablevision Sys.,

her similarly-situated co-workers were not terminated, id. ¶

760 F.3d 223, 225 (2d Cir. 2014). If the defendant satisfies its

55, she does not provide any further details.

burden, the burden shifts back to the plaintiff to demonstrate

that the proffered reason is pretextual. McDonnell, 411 U.S.

Karunakaran also alleges that another professor in the

at 804; Kirkland, 760 F.3d at 225.

psychology department at times let her students leave after

only one hour of class, even though the class was meant to

To state a prima facie case of retaliation under § 1981,

run for two and a half hours. Doc. 62 at 59-60. Karunakaran

a plaintiff must establish (1) participation in a protected

does not identify or describe this alleged comparator, nor

activity; (2) defendant's knowledge of the protected activity;

does she explain how this professor's choice to let her

(3) an adverse employment action; and (4) a causal

students leave class early in any way supports an inference

connection between the protected activity and the adverse

of discrimination against her; notably, Karunakaran does not

employment action. Dickens v. Hudson Sheraton Corp., LLC,

allege that she would not have been allowed to make the

167 F. Supp. 3d 499, 522 (S.D.N.Y. 2016), aff'd, 689 F. App'x

same choice. At bottom, none of these allegations can support

670 (2d Cir. 2017).

even a minimal inference that Karunakaran experienced a

difference in treatment attributable to discrimination. See

Here, Karunakaran cannot plausibly allege a protected

Henry v. NYC Health & Hosp. Corp., 18 F. Supp. 3d 396,

activity. “A protected activity is one that ‘protest[s] or

409 (S.D.N.Y. 2014) (dismissing discrimination claims where

oppose[s] statutorily prohibited discrimination.’ ” Kouakou v.

complaint fails to identify, let alone describe, any purported

Fideliscare New York, 920 F. Supp. 2d 391, 400 (quoting Cruz

comparator).

v. Coach Stores, Inc., 202 F.3d 560, 566); Brands-Kousaros

v. Banco Di Napoli S.P.A., No. 97 Civ. 1673 (DLC), 1997

As to her claim that Defendants discriminated against her by

WL 790748, at *5 (S.D.N.Y. Dec. 23, 1997) (“the protected

failing to address the Student's behavior, Karunakaran does

activity alleged must involve some sort of complaint about

not show how this failure is in any way connected to her race,

a type of discrimination that [a statute] forbids.”). While a

national origin, or age.

see Kotcher v. Rosa & Sullivan Appliance Ctr., 957 F.2d 59, retaliation claim is dismissed.

65 (2d Cir. 1992), “both formal and informal complaints [are]

protected activity....” Schaper v. Bronx Lebanon Hosp. Ctr.,

408 F. Supp. 3d 379, 391 (S.D.N.Y. 2019) (citing Hubbard b. NYSHRL and NYCHRL Claims

v. Total Commc'ns, Inc., 347 F. App'x 679, 680–81 (2d Cir.

2009)). A district court may decline to exercise supplemental

jurisdiction over state and city law claims when “the district

Protected complaints generally include “making complaints court has dismissed all claims over which it has original

to management ..., protesting against discrimination by jurisdiction.” 28 U.S.C. § 1367(c)(3); see also In re Merrill

industry or by society in general, and expressing support Lynch Ltd. P'ships Litig., 154 F.3d 56, 61 (2d Cir. 1998)

of co-workers who have filed formal charges.” Soliman v. (“[W]hen the federal claims are dismissed the ‘state claims

Deutsche Bank AG, No. 03 Civ. 104 (CBM), 2004 WL should be dismissed as well.’ ” (quoting United Mine

1124689, at *12 (S.D.N.Y. May 20, 2004) (citing Cruz, 202 Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966))). Once

F.3d at 566); see also Sumner v. U.S. Postal Serv., 899 a district court's discretion is triggered under § 1367(c)

F.2d 203, 209 (2d Cir. 1990). An informal complaint may (3), it balances the traditional “values of judicial economy,

be “nothing more than a simple ‘objection voiced to the convenience, fairness, and comity” in deciding whether

employer,’ ... but at the very least, ‘there must be some form of to exercise jurisdiction. Kolari v. New York-Presbyterian

professional indicia of a complaint made against an unlawful Hospital, 455 F.3d 118, 122 (2d Cir. 2006) (quoting Carnegie-

activity.’ ” Soliman, 2004 WL 1124689, at *12 (internal Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). The

citations omitted). Supreme Court has noted that in a case where all federal

claims are eliminated before trial, “the balance of factors ...

*6 Though Karunakaran repeatedly refers to “union will point toward declining to exercise jurisdiction over the

activities” and “whistleblowing” she does not, as Defendants remaining state-law claims.” Id. (quoting Cohill, 484 18 U.S.

point out, provide any allegations that her union activities or at 350 n.7). Having dismissed all of Karunakaran's federal

whistleblowing concerned or were related to some statutorily- claims under Rule 12(b)(6), the Court declines to exercise

prohibited discrimination. In particular, Karunakaran alleges supplemental jurisdiction over, and dismisses, her state and

that she emailed Perez to encourage him to program every city law claims.

department printer to print double-sided; she asked Perez

why online classes could not be taught through “Peer faculty

IV. CONCLUSION

mentoring;” she asked Defendant Sangeeta Bishop whether

For the reasons set forth above, the Defendants’ motion to

she could serve on an equity and inclusion task force but

dismiss the SAC is GRANTED with prejudice.

was told that adjunct professors were not included; she asked

whether faculty needed to include attendance information in

It is SO ORDERED.

their syllabi; and she asked why hard copies of mail had

not been delivered to BMCC's uptown campus.3 Doc. 62 at

50-51. None of these suggestions or questions is a complaint, All Citations

protest, or objection and, in any event, Karunakaran does

not show how any of these activities relates to an unlawful Not Reported in Fed. Supp., 2022 WL 902370

activity, let alone statutorily-prohibited discrimination. As

Footnotes

1 Antonio Perez, Karin Wilks, Sangeeta Bishop, Rifat Salam, Antoinette McKain, Robert Diaz, Ian Wentworth,

Michael Hutmaker, and Marva Craig.

Dep't of Soc. Servs., 461 F.3d 199, 205 (2d Cir. 2006). Retaliation claims under Title VII and the ADEA

therefore are analyzed under the same framework. Dickens v. Hudson Sheraton Corp., LLC, 167 F. Supp.

3d 499, 522 (S.D.N.Y. 2016), aff'd, 689 F. App'x 670 (2d Cir. 2017); see also Terry, 336 F.3d at 141 (applying

the same standards and burdens to claims of retaliation brought under both Title VII and the ADEA).

3 Karunakaran also repeats her allegation—in her FAC—that she engaged in protected activity when she

complained to Defendants about the Student's behavior, but the Court in its order granting Defendants’ first

motion to dismiss found none of those complaints—her informal complaints to Defendants as well as her

formal March 18 complaint—amounted to protected activities because they did not concern unlawful activity.

See Doc. 55 at 11.

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

2023 WL 419699 defendants except the FDCPA claims, which are brought

Only the Westlaw citation is currently available. against Defendants Daniels Norelli Cecere & Tavel PC

United States District Court, S.D. New York. (“DNCT”), Harold Rosenthal, Allison Heilbraun, and Eric

Tavel.

Towaki KOMATSU, Plaintiff,

v.

URBAN PATHWAYS, INC.; Daniels Norelli Cecere STANDARD OF REVIEW

& Tavel PC; Neighborhood Association for Inter-

Cultural Affairs, Inc.; The City of New York; Ronald The Court must dismiss an in forma pauperis complaint, or

Abad; Steven Banks; Barbara Beirne; Kristen Benjamin- any portion of the complaint, that is frivolous or malicious,

fails to state a claim on which relief may be granted, or

Solis; Martha Calhoun; Sharon Coates; Gary Cohen;

seeks monetary relief from a defendant who is immune from

Marin Gerber; Allison Gill-Lambert; Anthony M.

such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v.

Gonzalez; Allison Heilbraun; Joni Kletter; Lisa

Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).

Lombardi; Julio Manjarrez; Nigel Marks; Jeffrey The Court must also dismiss a complaint when the Court lacks

Mosczyc; Andrew Nastachowski; Molly Park; Kishea subject-matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).

Paulemont; Pinny Ringel; Harold Rosenthal; Ariana

Saunders; Ann Marie Scalia; Frederick Shack; Nancy While the law mandates dismissal on any of these grounds, the

Southwell; Samuel Spitzberg; Eric Tavel, all sued in Court is obliged to construe pro se pleadings liberally, Harris

their individual and official capacities. Nancy Bannon; v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them

Anthony Cannataro; Lyle Frank; Shorab Ibrahim; to raise the “strongest [claims] that they suggest,” Triestman

Gary Jenkins; Lawrence Marks; Maura Noll; Daniel v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)

(internal quotation marks and citations omitted, emphasis in

Tietz, all sued in their official capacities, Defendants.

original). But the “special solicitude” in pro se cases, id. at

22-CV-9080 (LTS) 475 (citation omitted), has its limits – to state a claim, pro se

| pleadings still must comply with Rule 8 of the Federal Rules

Signed January 26, 2023 of Civil Procedure, which requires a complaint to make a short

and plain statement showing that the pleader is entitled to

Attorneys and Law Firms relief.

Towaki Komatsu, Bronx, NY, Pro Se. Moreover, in circumstances where “a court considers whether

to withdraw a pro se litigant's special status, it should

consider not only that litigant's lifetime participation in all

ORDER TO AMEND forms of civil litigation, but also his experience with the

particular procedural setting presented.” Sledge v. Kooi, 564

LAURA TAYLOR SWAIN, Chief United States District

F.3d 105, 109 (2d Cir. 2009). Thus, courts may “limit the

Judge:

withdrawal of special status to specific contexts in which the

*1 Plaintiff, appearing pro se, brings this 338-page litigant's experience indicates that he may be fairly deemed

complaint asserting violations of federal and state law. knowledgeable and experienced.” Id.

Specifically, he seeks relief under 42 U.S.C. § 1983; the Fair

Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692;

the civil provision of the Racketeer Influenced and Corrupt BACKGROUND

Organizations Act (“RICO”), 18 U.S.C. § 1964; and New

York State and City law. A. Plaintiff's Procedural History in This Court

Plaintiff Towaki Komatsu has brought numerous actions in

By order dated November 22, 2022, the Court granted this court, including an action recently dismissed by the

Plaintiff's request to proceed without prepayment of fees, undersigned. See Komatsu v. The City of New York, ECF

Plaintiff's alleged unlawful exclusion from participating in

public meetings held by the City of New York. See, e.g., C. Komatsu I

Komatsu v. The City of New York, ECF 1:20-CV-7046 (ER)

1. Defendants

(S.D.N.Y.), lv denied, 22-1996 (2d Cir. Dec. 22, 2022)

On August 14, 2020, Plaintiff filed Komatsu I, where he

(denying leave to appeal, based on leave-to file sanction,

asserted many of the claims that are re-asserted in Komatsu

“because the appeals do not depart from Petitioner's ‘prior

II and named many of the same defendants. The first group

pattern of vexatious filings.’ ”); Komatsu v. The City of New

of defendants includes Urban, described by Plaintiff as “a

York, ECF 1:18-CV-03698 (LGS) (GWG) (S.D.N.Y. Sept.

private entity, business partner of HRA” (ECF 2, at 13), and

27, 2021) (ECF 627) (order involuntarily dismissing suit

the following six Urban employees: Frederick Shack, Chief

due to Plaintiff's vexatious conduct, including his repetitive

Executive Officer; Lisa Lombardi and Nancy Southwell,

voluminous and irrelevant filings), aff'd, 21-2479 (2d Cir.

Deputy Executive Directors; Ronald Abad, Chief Operating

Mar. 1, 2022) (“[T]he appeal is DISMISSED because it

Officer; Kishea Paulemont, Program Director; and Sharon

‘lacks an arguable basis either in law or in fact.’ Neitzke v.

Coates, an employee. Plaintiff also sued DNCT, the law firm

Williams, 490 U.S. 319, 325 (1989).”). In the 20-CV-7046

representing Urban in its litigation brought against Plaintiff in

action, Plaintiff was ordered to show cause why the action

the Bronx County Housing Court, as well as two of the firm's

“should not be dismissed pursuant to the Court's inherent

lawyers, Allison Heilbraun and Eric Tavel.

power to sanction vexatious litigants and/or failure to comply

with court orders.” Id. (ECF 208, at 4.) That matter has been

Plaintiff also sued individuals employed with the City's HRA,

briefed but to date is unresolved.

including Steven Banks, the former Commissioner; three

HRA lawyers, Marin Gerber, Jeffrey Mosczyc, and Ann

*2 Since December 20, 2020, Plaintiff has been subject to

Marie Scalia; and Kristin Benjamin-Solis, an HRA employee.

a prefiling injunction requiring him to seek permission to

file “any new action in this Court against the City of New

The final defendant whom Plaintiff also names in Komatsu II

York, city officials, and members of the NYPD regarding their

alleged involvement in preventing him from attending public

is Nancy Bannon, a New York State Supreme Court Justice.1

meetings with the Mayor.” Komatsu, ECF 1:20-CV-07046

(ER) (ECF 45).

2. Allegations

The following facts are taken from the complaint filed in

B. Plaintiff's Prior Litigation Involving Claims Raised in Komatsu I.2

This New Action

In addition to the litigation Plaintiff has pursued against In 2016, Plaintiff signed a lease with Urban to rent an

the City of New York concerning his alleged exclusion apartment in the Bronx. Subsequent to Plaintiff's signing

from public meetings, Plaintiff also has pursued litigation the lease, Urban initiated two Housing Court proceedings in

against individuals employed by the City of New York, the the Bronx County Housing Court (“Housing Court”). DNTC

State of New York, and private individuals regarding his represented Urban in these two proceedings.

lease agreement with Urban Pathways (“Urban”), subsequent

state court litigation brought by Urban against Plaintiff, *3 In January 2017, HRA agreed to pay Plaintiff's storage

interactions with employees of New York City's Human expenses, incurred at CubeSmart, while Plaintiff resided in

Resources Administration (“HRA”), and interactions with his Urban apartment. HRA later contested its agreement to

employees of the New York State Office of Temporary pay for those expenses or to reimburse Plaintiff for the storage

and Disability Assistance (“OTDA”). Before filing this expenses he had already paid. Plaintiff litigated that issue in

lawsuit, Plaintiff filed a similar action asserting claims against fair hearings before the OTDA, and then in the state courts

Urban and, as discussed below, naming many of the same in proceedings that he initiated under Article 78 of the New

defendants named here. See Komatsu v. City of New York, York Civil Practice Law and Rules (“Article 78”). On or

ECF 1:20-CV-6510, 2 (S.D.N.Y. Oct. 22, 2020) (“Komatsu about January 31, 2018, Defendant Judge Bannon dismissed

I”). Accordingly, the Court will first describe the facts alleged Plaintiff's initial Article 78 proceeding. Plaintiff brought

in Komatsu I, and then turn to the facts alleged in this new another proceeding that was pending before Defendant Judge

In addition to seeking damages, Plaintiff sought various forms and Samuel Spitzberg, OTDA lawyers; and Maura Noll,

of injunctive relief, including orders (1) directing the City of OTDA Administrative Law Judge; (6) an employee of the

New York and Defendant Mosczyc to provide discovery in Community Affairs Unit of the Mayor's Office, Pinny Ringel;

Plaintiff's state-court litigation, (2) staying his Housing Court and (7) another DNCT lawyer, Harold Rosenthal.

proceedings, or in the alterative, transferring the state court

action to this court; (3) directing Judge Bannon to provide an Finally, Plaintiff names as defendants the following

explanation regarding one of her decisions; and (4) directing individuals, but only in their official capacities: (1) Anthony

the City of New York to cease all of its business with Urban. Cannotora, Acting Chief Judge of the State of New York; (2)

Judge Lyle Frank, New York State Supreme Court; (3) Judge

Shorab Ibrahim, Bronx County Housing Court; (4) Gary

3. Litigation History Jenkins, Commissioner of the New York City Department

On October 22, 2020, the Honorable Louis L. Stanton of Social Services (“DSS”); (5) Lawrence Marks, Chief

dismissed the complaint as frivolous, for failure to state a Administrative Judge of the UCS; and (6) Joni Kletter,

claim on which relief may be granted, for seeking monetary Administrative Law Judge and New York City attorney, and

relief from defendants who are immune from such relief, and employee of former Mayor Bill de Blasio.

under the Anti-Injunction Act. See 28 U.S.C. § 1915(e)(2)

(B)(i)-(iii); 28 U.S.C. § 2283. Plaintiff appealed the decision,

and the United States Court of Appeals for the Second Circuit 2. Allegations

affirmed. See Komatsu v. CubeSmart, No. 20-3676-cv (2d Cir.

Dec. 20, 2021) (mandate issued Jan. 31, 2022).

a. Urban and DNCT Defendants

*4 Plaintiff's allegations against the Urban and DNCT

D. Komatsu II

Defendants concern his litigation in Housing Court. He

1. Defendants alleges that on August 16, 2019, Urban employee Coates

In this new action, Plaintiff brings the same claims, as well “lied by fraudulently claiming that I owed Urban more than

as new claims against the following defendants, whom he $30,000 in rent for my Urban apartment.” (ECF 2, at 76.)

named in Komatsu I: (1) Urban and Urban employees Shack, “Urban used attorneys for DNCT to illegally commence

Lombardi, Abad, Coates, Paulemont, and Southwell; (2) [two lawsuits] as nonpayment proceedings against me.

DNCT and DNCT lawyers Heilbraun and Tavel; (3) former Due to mootness, [these lawsuits] must be dismissed with

Commissioner Banks, HRA employee Benjamin-Solis, and prejudice.” (Id.)

HRA lawyers Gerber, Mosczyc, and Scalia; and (4) Judge

Bannon. Plaintiff alleges that more recently, on March 3, 2022,

Plaintiff informed a representative at the Housing Court that

Plaintiff also brings new claims against additional defendants, Urban failed to provide him with legal papers; he seeks

who fall into the following seven categories: (1) additional dismissal of a third action brought by Urban for failure to

HRA defendants – Gary Jenkins, HRA's Commissioner; serve him such papers. He also seeks “a subpoena that would

Martha Calhoun, HRA's General Counsel; Allison Gil- order Urban to provide me the video recordings that were

Lambert, an HRA lawyer; Barbara Beirne, Deputy Chief recorded on 3/8/22 both in the lobby and stairwells in my

Agency Contacting Officer for HRA, who is a lawyer; building” to show that Defendant Gonzalez, a process server,

and Molly Park, an HRA employee; (2) additional Urban did not in fact serve Plaintiff legal papers. (Id.)

defendants - Ariana Saunders, Urban's Chief Compliance

Officer, and Andrew Nastachowski and Gary Cohen, Urban Plaintiff contends that DNCT lawyers “committed continuing

employees; (3) the Neighborhood Association for Inter- violations against me as they committed wire fraud ... and

Cultural Affairs, Inc. (“NAICA”) and Julio Manjarrez, otherwise violated RICO ... the FDCPA,” and New York State

a NAICA lawyer, who represented Plaintiff during his statutes. (Id. at 77.) He also contends that “Urban, DNCT,

Urban litigation in Housing Court; (4) a licensed process and their personnel committed multiple acts of wire fraud

server, Anthony Gonzalez, who allegedly did not serve against me through legal filings that were filed by attorneys

Plaintiff with legal papers; (5) individuals employed with the for Urban[.]” (Id.)

Finally, Plaintiff claims that the HRA and Urban Defendants incidents include: OTDA Commissioner Tietz, sued in his

are so intertwined as to suggest that Urban is “an alter-ego, official capacity; OTDA lawyers Marks and Spitzberg; and

proxy, and agent of HRA while being a private entity whose Administrative Law Judge Noll.

acts are attributable to HRA.” (Id. at 181.)

d. Defendants former Commissioner

b. HRA Defendants Banks, Pinny Ringel, and Lori Kletter

Plaintiff's claims against the HRA Defendants concern *5 Plaintiff's claims against former Commissioner Banks

HRA's alleged involvement in Plaintiff's litigation against also concern New York City public meetings involving

Urban, that is: (1) Urban's alleged objection of justice; (2) public officials. For example, Plaintiff asserts that “I twice

interference with Plaintiff's ability to obtain counsel; (3) testified ... during City Council public hearings on 9/20/18

violation of his rights related to receiving discovery material; and 2/4/19 .... Mr. Banks was present on 2/4/19 while I

and (4) alleged fraud on the court by HRA lawyers. The testified about Mr. Vargas and deliberately turned the screen

majority of these claims arose on or before August 14, of my laptop to face Mr. Banks as I played a relevant video in

2020, including nearly all of the claims against Banks and conjunction with and support of my testimony.” (Id. at 187.)

the claims against Benjamin-Solis. These claims include

Plaintiff's CubeSmart litigation, which was the subject of Those claims brought against Ringel and Kletter also arise

Plaintiff's claims against HRA in Komatsu I. rise out of interactions with City officials at public meetings,

including on such meeting on November 16, 2021, when

With respect to the pro bono counsel allegation, Plaintiff Ringel and Kletter “illegally prevented me from having a

asserts that, before former Commissioner Banks “resigned conversation with Mr. Banks during that meeting right after I

from HRA near the state of 2022 ... he repeatedly told me talked with Mr. de Blasio during it while he stood next to Mr.

that he and HRA would” assist Plaintiff in securing pro [Eric] Adams.” (Id. at 89.)

bono counsel. (Id.) These efforts, Plaintiff contends, were

unsuccessful in part because the HRA Defendants “engag[ed]

in illegal acts against me pertaining to public meetings that

e. NAICA Defendants

have been public forums that include town hall meetings,

resource fair meetings, and public hearings by illegally Plaintiff brings legal malpractice claims against NAICA

preventing [me] from lawfully attending them in the rooms in and NAICA lawyer Manjarrez, who represented Plaintiff

which members of the public conducted them with Mr. Banks during one of the proceedings brought by Urban. (Id. at 79)

and other personnel[.]” (Id.) (“Mr. Manjarrez confirmed that he was defying a directive

that I had issued to him to obtain the video recordings

The allegations against the HRA lawyers concern their that were recorded on 3/8/22 by video security cameras

representation of the City during Plaintiff's litigation against that are installed in public areas in my building” to prove

the City. These government lawyers include Beirne, Gil- that Defendant Gonzalez did not serve Plaintiff with legal

Lambert, Gerber, Mosczyc, and Scalia. The claims against papers.).

Park concern Park's informing Plaintiff, on September 13,

2022, that Plaintiff would not receive discovery in his OTDA

proceeding. (See id. at 118.)

f. Process Server Gonzalez

Plaintiff brings claims against a process server who allegedly

c. OTDA Defendants failed to serve legal papers relating to the Urban litigation.

(Id. at 76) (“I wasn't served legal papers for Urban3 then by

Plaintiff's claims against the OTDA Defendants concern Defendant Anthony Gonzalez who claimed that he serve me

Plaintiff's litigation with the OTDA, over which Judge legal papers[.]”).

Bannon presided and in which HRA lawyers represented

3. Claims capacity claims against Judges Bannon, Cannataro, Frank,

Plaintiff asserts Section 1983 Claims against: (1) The Ibrahim, Chief Administrative Judge Marks, Administrative

City of New York; (2) Urban and Urban employees Law Judge Noll, and Commissioner Tietz, notwithstanding

Ronald Abad, Lisa Lombardi, Andrew Nastachowski, Ariana his prior experience with this specific context. Sledge, 564

Saunders, Frederick Shack, Nancy Southwell, and Kishea F.3d at 109. Because these claims are barred under the

Paulemont; (3) HRA Commissioner Gary Cohen, former Eleventh Amendment, the Court dismisses all federal claims

HRA Commissioner Steven Banks, HRA lawyers Marin brought against these Defendants. 28 U.S.C. § 1915(e)(2)(B)

Gerber, Ann Marie Scalia, Jeffrey Mosczyc, and Allison (iii).

Gill-Lambert, HRA employee Kristen Benjamin-Solis, HRA

General Counsel Martha Calhoun, (4) Judges Nancy Bannon,

Lyle Frank, Shorab Ibrahim, Joni Kletter, and Maura Noll; B. Plaintiff's Claims Against Government Attorneys Are

(5) OTDA lawyers Nigel Marks and Samuel Spitzberg; (6) Dismissed

HRA employee Molly Park; and (7) Mayor's Office employee *6 Plaintiff's federal claims brought against Defendants

Pinny Ringel. Calhoun, Beirne, Gil-Lambert, Mosczyc, Gerber, Scalia,

Marks, and Sptizberg arise from those defendants' legal

Plaintiff's FDCPA claims are brought against the Urban advocacy representing the HRA and OTDA. In Komatsu I,

and DNCT Defendants, that is, (1) Urban and Urban Plaintiff brought similar claims against Mosczyc and Gerber,

employees Ronald Abad, Sharon Coates, Lisa Lombardi, and Judge Stanton dismissed the claims because these two

Kishea Paulemont, Ariana Saunders, Frederick Shack, Nancy Defendants, as government lawyers, were absolutely immune

Southwell; and (2) DNCT and DNCT lawyers Harold from the relief Plaintiff sought from them. Undeterred by the

Rosenthal, Eric Tavel, and Allison Heilbraun. dismissal of those claims in Komatsu I, Plaintiff continues

to seek relief against government attorneys who are his

Plaintiff's RICO claims are brought against City adversaries in his state court litigation. As explained in

officials, NAIC Defendants, Urban Defendants, and DNCT Komatsu I, however, government attorneys are immune

Defendants. from suit under Section 1983 “when functioning as an

advocate of the state [or local government] in a way that is

Plaintiff also asserts various state law claims. intimately associated with the judicial process.” Mangiafico

v. Blumenthal, 471 F.3d 391, 396 (2d Cir. 2006); see Barrett v.

United States, 798 F.2d 565, 572–73 (2d Cir.1986) (absolute

immunity for government attorney defending state in a civil

DISCUSSION

lawsuit). Accordingly, the Court dismisses Plaintiff's federal

A. Claims Brought Against State Defendants in Their claims against the government attorneys because they are

Official Capacity Are Dismissed Under the Eleventh immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(iii).

Amendment

Plaintiff brings claims against Judges Nancy Bannon,

C. Claims Brought Against HRA Employee Park

Anthony Cannatoro, Lyle Frank, Shorab Ibrahim; Chief

The Court also dismissed the claims brought against Park,

Administrative Judge Lawrence Marks; Administrative Law

an HRA employee who allegedly informed Plaintiff that he

Judge Maura Noll; and Commissioner Daniel Tietz, in their

was not entitled to discovery, because this Defendant is also

official capacities. In Komatsu I, Plaintiff also brought several

immune from the relief Plaintiff seeks. Like the HRA lawyers,

claims against New York State officials, in their official

who are absolutely immune as government advocates, Parks

capacity. In dismissing those claims under the Eleventh

is absolutely immune for damages where her conduct as an

Amendment, Judge Stanton explained that the claims brought

HRA employee was “intimately associated with the judicial

against these State officials were not permitted under the

process.” Mangiafico, 471 F.3d at 396. Accordingly, the Court

Eleventh Amendment. See Komatsu I, 1:20-CV-6510, 10

dismisses all claims against this Defendant. 28 U.S.C. §

(“Accordingly, the Court dismisses Plaintiff's claims under

1915(e)(2)(B)(iii).

federal law against ... Justice Bannon, Judge Spears, and

Defendant Vaughan, in their official capacities, under the

doctrine of Eleventh Amendment immunity. 28 U.S.C. §

D. Claims Brought Against Administrative Law Judge Banks and Benjamin-Solis that were considered on the merits

Noll by Judge Stanton and dismissed for failure to state a claim.

Plaintiff's claims under federal law against Judge Noll are See § 1915(e)(2)(B)(ii). In Komatsu II, Plaintiff brings the

barred under the doctrine of judicial immunity. Under this same claims against these Defendants, as well as new claims

doctrine, judges are absolutely immune from suit for claims arising from the same conduct, that is, Plaintiff's litigation

against them in their individual capacities for damages with HRA. These claims are barred under the doctrine of

for any actions taken within the scope of their judicial claim preclusion.3

responsibilities. See Mireles v. Waco, 502 U.S. 9, 11-12

(1991) (applying judicial immunity to claims under § 1983);

Under the doctrine of claim preclusion, also known as “res

Deem v. DiMella-Deem, 941 F.3d 618, 620-21 (2d Cir. 2019)

judicata,” a litigant may not bring a new case that includes

(same as to claims under § 1983 and § 1985), cert denied,

claims or defenses that were or could have been raised in an

140 S. Ct. 2763 (2020). Generally, “acts arising out of, or

earlier case in which the same parties were involved if that

related to, individual cases before [a] judge are considered

case resulted in a judgment on the merits. Brown v. Felsen,

judicial in nature.” Bliven v. Hunt, 579 F.3d 204, 210 (2d

442 U.S. 127, 131 (1979). Claim preclusion “prevents parties

Cir. 2009). “[E]ven allegations of bad faith or malice cannot

from raising issues that could have been raised and decided

overcome judicial immunity.” Id. at 209. This is because,

in a prior action – even if they were not actually litigated.”

“[w]ithout insulation from liability, judges would be subject

Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc.,

to harassment and intimidation ....” Young v. Selsky, 41 F.3d

140 S. Ct. 1589, 1594, 206 L. Ed. 2d 893 (2020).

47, 51 (2d Cir. 1994).

Claim preclusion generally applies if: “(1) the prior decision

Judicial immunity does not apply when a judge acts outside

was a final judgment on the merits, (2) the litigants were the

of his or her judicial capacity, or when a judge takes action

same parties, (3) the prior court was of competent jurisdiction,

that, although judicial in nature, is taken “in the complete

and (4) the causes of action were the same.” In re Motors

absence of all jurisdiction.” Mireles, 502 U.S. at 11-12; see

Liquidation Co., 943 F.3d 125, 130 (2d Cir. 2019) (citation

also Bliven, 579 F.3d at 209-10 (describing actions that are

and internal quotation marks omitted).

judicial in nature). But “the scope of [a] judge's jurisdiction

must be construed broadly where the issue is the immunity of

To determine if a claim could have been raised in an earlier

the judge.” Stump v. Sparkman, 435 U.S. 349, 356 (1978).

action, courts look to whether the present claim arises out of

the same transaction or series of transactions asserted in the

Plaintiff's claims against Judge Noll arise from her actions

earlier action, see Pike v. Freeman, 266 F.3d 78, 91 (2d Cir.

and decisions in OTDA proceedings, conduct that is well

2001), or, in other words, whether facts essential to the second

within the scope of judicial duties. Judge Noll is therefore

suit were present in the first suit, NLRB v. United Techs. Corp.,

immune from suit as to Plaintiff's claims against her under the

706 F.2d 1254, 1260 (2d Cir. 1983). “A party cannot avoid the

doctrine of judicial immunity. The Court dismisses Plaintiff's

preclusive effect of res judicata by asserting a new theory or

claims against Judge Noll because Plaintiff seeks monetary

a different remedy.” Brown Media Corp. v. K&L Gates, LLP,

relief against a defendant who is immune from such relief, 28

854 F.3d 150, 157 (2d Cir. 2017) (internal quotation marks

U.S.C. § 1915(e)(2)(B)(iii), and, consequently, as frivolous,

and citation omitted).

28 U.S.C. § 1915(e)(2)(B)(i). See Mills v. Fischer, 645 F.3d

176, 177 (2d Cir. 2011) (“Any claim dismissed on the ground

All of Plaintiff's claims brought against Benjamin-Solis, and

of absolute judicial immunity is ‘frivolous’ for purposes of

some of the claims brought against Banks, accrued before

[the in forma pauperis statute].”).

Plaintiff filed Komatsu I. Further, all of the claims brought

against Benjamin-Solis and some of the claims brought

E. Claims Brought Against Former HRA Commissioner against Banks in Komatsu II arise from the same series of

Banks and HRA employee Benjamin-Solis transactions as the claims asserted against them in Komatsu

I. Because Plaintiff did bring those claims, or could have

1. Claims that arose before August 10, 2020 against brought those claims in Komatsu I, those claims are barred

Banks and Benjamin-Solis under the doctrine of claim preclusion.

2. Claims against Banks that accrued after August 14, omitted).

2020

Plaintiff brings new claims against Banks regarding his Plaintiff alleges no facts showing that the City of New York

interactions with Banks at public meetings. Plaintiff is barred violated any of his federal constitutional or statutory rights

from bringing new claims against City officials regarding because of one of the City's policies, customs, or practices.

incidents occurring at public meetings, unless he receives The Court therefore dismisses Plaintiff's claims under federal

permission to do so. Because Plaintiff did not seek permission law against the City of New York and Commissioner Jenkins,

to file new claims against these individuals, as discussed sued in his official capacity, for failure to state a claim on

below in Section J, those claims are dismissed without which relief may be granted.

prejudice.

*8 With respect to Bank's alleged interference with G. Section 1983 Claims Brought Against Private

Plaintiff's retaining pro bono counsel, Plaintiff does not Defendants

suggest a violation of a constitutional right. The Sixth Plaintiff brings Section 1983 claims against private

Amendment, which provides a right to counsel in criminal individuals and entities, also named in Komatsu I, that is:

cases, “does not govern civil cases.” Turner v. Rogers, Urban, Abad, Coates, Lombardi, Paulemont, Shack, and

564 U.S. 431, 441 (2011). Thus, to the extent Banks Southwell. Judge Stanton dismissed these claims for failure

interfered with Plaintiff's retaining counsel, such interference to state a claim because Plaintiff failed to show that any

does not implicate Plaintiff's rights under the United conduct by these private individuals could be considered

States Constitution. Accordingly, the claims against Banks state action. Now, Plaintiff reasserts similar claims against

concerning pro bono counsel are dismissed for failure to state these same private individuals and also names additional

a claim. private individuals, not named in Komatsu I, that is: Saunders,

Nastachowski, and Cohen. Plaintiff still does not show,

however, that these defendants' conduct can be considered

F. The City of New York and HRA Commissioner state action. Thus, for the reasons set forth in Judge Stanton's

Jenkins order, dismissing the Section 1983 claims against the private

The Court dismisses Plaintiff's claims under federal law individuals, the Court dismisses Plaintiff's claims against the

against the City of New York and Commissioner Jenkins, individual defendants named in this action for failure to state

who is sued in his official capacity. When a plaintiff sues a claim.

a municipality under Section 1983, it is not enough for the

plaintiff to allege that one of the municipality's employees

or agents engaged in some wrongdoing. The plaintiff must H. Claims Under Civil RICO

show that the municipality itself caused the violation of the Plaintiff asserts that Defendants have conspired against him,

plaintiff's rights. See Connick v. Thompson, 563 U.S. 51, 60 in violation of the civil provision of RICO. Plaintiff brought

(2011) (“A municipality or other local government may be similar claims in Komatsu I, and Judge Stanton dismissed

liable under this section [1983] if the governmental body those claims because Plaintiff failed to show that Defendants

itself ‘subjects’ a person to a deprivation of rights or ‘causes’ engaged in any activity that would support any claim under

a person ‘to be subjected’ to such deprivation.”) (quoting civil RICO. In this action, Plaintiff also fails to state any facts

Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. suggesting a RICO violation. The Court therefore dismisses

658, 692 (1978)); Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Plaintiff's claims under civil RICO for failure to state a claim

Cir. 2011). on which relief may be granted. See § 1915(e)(2)(B)(ii).

To state a Section 1983 claim against a municipality, the

plaintiff must allege facts showing (1) the existence of a I. Claims Under the Fair Debt Collection Practices Act

municipal policy, custom, or practice, and (2) that the policy, (“FDCPA”)

custom, or practice caused the violation of the plaintiff's *9 Plaintiff brings claims against the Urban and DNCT

constitutional rights. Jones v. Town of East Haven, 691 F.3d Defendants, asserting that they violated the FDCPA. He

72, 80 (2d Cir. 2012); see Bd. of Cnty. Comm'rs of Bryan alleges that they falsely claimed in court that Plaintiff owed

rent. He relies on a district court decision, in which a

Kucker & Bruh, LLP, 958 F. Supp. 2d 524, 526 (S.D.N.Y. Lombardi, Kishea Paulemont, Ariana Saunders, Frederick

2013) (“Defendant K & B is a law firm that primarily Shack, and Nancy Southwell are dismissed for failure to state

represents landlords in New York City. K & B is a debt a claim upon which relief may be granted.

collector as defined by the FDCPA.”).

The FDCPA applies to consumer debt “arising out of ... J. Claims Against former Commissioner Banks, Pinny

transaction[s] ... primarily for personal, family, or household Ringel, and Lori Kletter

purposes.” 15 U.S.C. § 1692a(5); Polanco v. NCO Portfolio Plaintiff's claims against former Commissioner Banks, Ringel

Mgmt., Inc., 930 F. Supp. 2d 547, 551 (S.D.N.Y. 2013) and Kletter, that arise out of alleged conduct by New York

(“[T]he FDCPA is triggered when the obligation is a debt City officials at public meetings, fall within the scope of

arising out of a consumer transaction”). In cases where Judge Ramos's order requiring Plaintiff to seek permission to

the FDCPA applies, it prohibits deceptive and misleading file “any new action in this Court against the City of New

practices by “debt collectors.” 15 U.S.C. § 1692e. A debt York, city officials, and members of the NYPD regarding their

collector is defined in Section 1692a(6) as: (1) a person alleged involvement in preventing him from attending public

whose principal purpose is to collect debts; (2) a person who meetings with the Mayor.” Komatsu, ECF 1:20-CV-07046

regularly collects debts owed to another; or (3) a person who (ER) (ECF 45). These claims are therefore dismissed without

collects its own debts, using a name other than its own as prejudice because Plaintiff has not obtained permission to

if it were a debt collector. See also Henson v. Santander bring these claims against these defendants.

Consumer USA, Inc., 137 S. Ct. 1718 (2017) (holding that

entities that regularly purchase debts originated by someone

K. Claims Under State Law

else and then seek to collect those debts for their own account

*10 A district court may decline to exercise supplemental

are not necessarily debt collectors subject to the FDCPA).

jurisdiction over claims under state law when it “has

dismissed all claims over which it has original jurisdiction.”

Section 1692d provides that “[a] debt collector may not

28 U.S.C. § 1367(c)(3). Generally, “when the federal-law

engage in any conduct the natural consequence of which is

claims have dropped out of the lawsuit in its early stages

to harass, oppress, or abuse any person in connection with

and only state-law claims remain, the federal court should

the collection of a debt.” Conduct in violation of the statute

decline the exercise of jurisdiction ....” Carnegie-Mellon

includes, among other examples and without limitation,

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