Opposition Brief — Ulysses I & Co. v. Morton

No. O1-107

IN THE

Supreme Court of the United States

ULYSSES 1 & COMPANY, INC.,

Pettioner,

”

PETER MORTON, GARY FELDSTEIN, MARA GIBBS,

PHE STATE OF NEW YORK, SUFFOLK COUNTY,

PHE INCORPORATED VILLAGE OF EAST HAMPTON

and EDWARD P. ROMAINE, as Clerk of Suffolk County,

Respondents.

Ow PETITION FOR A Wrir OF CERTIORARI TO THE

UnNrrep Stares COuRT OF APPEALS FOR THE SECOND CIRCUIT

JOINT BRIEF IN OPPOSITION OF

RESPONDENTS PETER MORTON,

GARY FELDSTEIN AND MARA GIBBS

Pitiip PIERCE Kevin L. SMITH

Counsel of Record Counsel of Record

Marcon & Pierce, LLP SrroocK & StROOCK & LavaAN, LLP

1370 Avenue of the Americas 180 Maiden Lane

New York, NY 10019 New York, NY 10038-4982

(212) 247-4844 (212) 806-5400

Counsel for Respondents Counsel for Respondent

Peter Morton and Mara Gibbs Gary Feldstein

LoOXS7O9 ce)

COUNSEL PRESS

(SOO) 274-3321 © (X00) 359-6859

1

QUESTIONS PRESENTED

1. Whether a district court has jurisdiction to determine

property rights in real property contrary to a state court

determination of such rights affirmed throughout the state

appellate system. ¥

2. Whether the complaint herein adequately alleged a

claim under 42 U.S.C. § 1983 under well settled precedents.

Ul

TABLE OF CONTENTS

Page

Questions Peesemeed |... x cic cue ccc eons Ve heen i

Falbe OF Comets... ooo kis CSR ee esas il

Table of Cited Amiens 5.66 oSe ainda esc iil

PTET Te Te re eee l

Statement of Che COOP. . iscc sda ie ea so ase l

A. The Suffolk County Action .............. 3

B. The Dismissed Compleat ............5. 5

C. ‘Fee Prior Paes i ee ics cs vs 9

D. Ulbyasen’ Oller AGU ook ccc dacs: 11

Summmeary of ARQUUMME con cce We txadkiseenuees 13

Reasons for Denying the Writ ................. 13

I. The District Court Lacked Jurisdiction Under

the Rooker-Feldman Doctrine ........... 13

Il. Ulysses Has Not Alleged a § 1983 Claim .... 19

Comeeeeeeh wos ac cca xkccke eee eee 22

ll

TABLE OF CITED AUTHORITIES

Page

Cases:

Avon Products, Inc. v. Solow, 215 A.D.2d 247, 626

N.Y.S.2d 493 (1st Dept. 1995), ibid. 270 A.D.2d

122, 704 N.Y.S.2d 255 (1st Dept. 2000) ....... 12

Brown y. Bethlehem Terrace Associates, 136 A.D.2d

222, 525 N.Y.S.2d 978 (3d Dept. 1988) ....... 21

Federated Department Stores, Inc. v. Moitie,

oS Ee) ae a ee 18

Feldman y. District of Columbia Court of Appeals,

ST Es OE EEE noc 6 soc danse smeckaua passim

Flaherty v. Lang, 199 F.3d 615 (1999) ..... veeee 18

Homola v. McNamara, 59 F.3d 647 (7th Cir. 1995)

EE Ss? A a a a re 6

Juidice v. Wall, 430 U.S. 321 (1977) ............ 15

Kahne-Richards Family Foundation y. Village of

Baldwinsville, 953 F. Supp. 39 (N.D.N.Y. 1997),

affirmed without opinion, 141 F.3d 1151 (2d Cir.

ed claw abies Wahu kas beh eS daca oN 9,10

Migra v. Warren City School District, 465 U.S. 75

SAE SA SG ny ee aa ee 17,18

iv

Cited Authorities

Morgan Guaranty Trust Co. v. Solow, 114 A.D.2d

818, 495 N.Y.S.2d 674 (1st Dept. 1985), affirmed

summarily, 68 N.Y.2d 779, 506 N.Y.S.2d 674

Page

POE oc da ee eee saneceaps ses ceneew be 12

Norris v. Grosvenor Marketing, Ltd., 803 F.2d

TOD: 45 Kade sea S adda e wean ere 18

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) ... 15

Reily v. Reid, 45 N.Y.2d 24, 407 N.Y.S.2d 645

Co eer ey ere rr err es rrr rer re TT 18

Rooker v. Fidelity Trust Co., 263 U.S. 413

i S| Per eer ee ee Te EeCrrer ye eT Tre Ere passim

Solow v. Liebman, 253 A.D.2d 808, 677 N.Y.S.2d

622 (2d Dept. 1998), ibid. 262 A.D.2d 693, 692

ew Fee fi ere ee 12

35-45 May Associates v. Mayloc Associates,

162 A.D.2d 389, 557 N.Y.S.2d 41 (1st Dept.

re er emer rrr eT ree nee 21

Trainor v. Harris, 431 U.S. 434 (1977) .......... 15

Yonkers Contracting Co. v. Port Authority, 93 N.Y.2d

37S, GAO WL Y.S.20 SIZ CUSED. ons n nc neccceee: 18

Younger v. Harris, 401 U.S. 37 (1971) .......... 15

eo

Satu wished CRABS Wetec pies

y

Cited Authorities

Page

Statutes: ;

SUS 6 OO OE ook sed caetieew 12

fe ae BATE 6S ee ee eee 17

ean Ee os nr re i, 6, 10, 11, 18, 19

Rules:

fo ot A | RPE roy Menem ety Ny it 10

Pa SEED boca ba eke ee eee l

Fina FRAO ha 0s sh 08s eee eee l

New York’s Civil Practice Law and Rules 8019(b)

-0's eae op te eee ew gee kee are aie ee 21

Court Rules:

Rule 15.2 United States Supreme Court ......... 2

2d Cir. Local Rule $0.23 2.0.0.0... ccc cn enene 11

l

STATEMENT

This joint brief is submitted on behalf of respondents

Peter Morton (“Morton”), Gary Feldstein (“Feldstein”)

and Mara Gibbs' (collectively referred to as the “Individual

Defendants”) in opposition to the petition of Ulysses |

& Company, Inc. (“Ulysses”) for a writ of certiorari to

the United States Court of Appeals for the Second Circuit

to review its summary order dated April 18, 2001 affirming

the judgment of the United States District Court for the

Eastern District of New York dismissing this action under

F.R.C.P. 12(b)(1) for lack of subject matter jurisdiction under

the Rooker-Feldman doctrine and F.R.C.P. 12(b)(6) for failure

to state a claim (the “Petition”) (App. A’). That judgment

was entered pursuant to the decision of Judge Denis R.

Hurley on August 1, 2001 (App. G).

STATEMENT OF THE CASE

As will be documented below, with this Petition this

Court becomes the tenth court, and the fifth federal court,

before which Ulysses has sought relief arising out of the issue

of who is entitled to ownership of 57 West End Drive, East

Hampton, New York in Suffolk County (the “Premises’”).

These claims were asserted in seven different actions,

including four in federal courts. In all courts and all actions,

Ulysses has been unsuccessful.

1. Mara Gibbs’ role in this case is an extremely limited one.

She was an occasional house guest in the premises at issue.

All references to Morton’s participation in this case include Gibbs.

2. All references to the record are either to the appendices to

the Certiorari Petition and are preceded by “App.” or to the Joint

Appendix in the Second Circuit and are preceded by the letter “A”.

y

In Ulysses’ characteristic style, the Statement of the Facts

in its Petition, just like the dismissed amended complaint

(A12-43), contains a number of misstatements and half truths.

Despite Rule 15.2 of the Rules of this Court, it would be

fruitless to try to correct all of these misstatements,

particularly since many of the issues these misstatements and

half-truths purport to raise cannot be determined in a federal

district court action since they have already been decided

against Ulysses by a final determination of New York

Supreme Court, Suffolk County subsequently affirmed

through the New York appellate system (which action will

be referred to as the “Suffolk County Action”*).

The Premises were originally owned by Jack Rounick

(““Rounick”) who entered into a contract with Feldstein, the

then tenant of the Premises, in which Rounick agreed to

sell the Premises to Feldstein with Feldstein to remain

in possession until the closing. (A44-58, including”

amendments). The Decision in the Suffolk County Action

(App. J) has specifically held that Feldstein fully performed

his contract with Rounick (App. J at J4, J6).

Despite this, on August 13, 1998, Rounick entered into

a second contract to sell the Premises for more money, this

time to Ulysses (A88-95). Significantly, the Ulysses contract

and the mortgage it provides for are expressly made

subject to Feldstein’s rights (A83, 94). Foretelling its true

agenda, Ulysses specifically indemnified Rounick against any

court award or legal expense, including punitive damages,

3. Subsequently, on May 14,2001, Supreme Court Suffolk

County granted Ulysses’ motion to vacate the judgment and directed

that it be resettled (App. H). That order specifically denied Ulysses’

attempt to reargue the underlying grant of summary judgment in favor

of Feldstein.

3

resulting from a suit by Feldstein or his assigns to enforce

his rights (A83). On August 25, 1998, the Premises were

ostensibly deeded to Ulysses by Rounick and a purchase

money mortgage given to Rounick (A116-118). Ulysses,

whose sole “asset” is its subsequently invalidated title to the

Premises, is a corporation controlled and funded by Sheldon

Solow, a prominent real estate entrepreneur with a penchant

for serial litigation in persistent violation of all notions of

res judicata and collateral estoppel (A214, 484). Using

Ulysses, he was apparently looking to trade up from his own

rather lackluster house to a more valuable oceanfront property

by attempting to literally steal the Premises from Feldstein

by purchasing it out from under him at a fraction of its

value (A485).

Ulysses argued that Feldstein breached his agreements

with Rounick by entering into an agreement with Morton on

August 10, 1998 (A59-70) under which, in the words of

the Suffolk County Decision, “Feldstein agreed that he

would under certain conditions assign to Morton at the

closing with Rounick all of Feldstein’s rights to the property”

(App. J at J4). That decision specifically held that this

agreement was not itself an assignment (App. J at J4, J7),

and thus no breach had occurred. This parallels a similar

holding by Magistrate Judge Michael L. Orenstein in a

hearing on August 10, 1999 in an earlier, dismissed Eastern

District action brought by Ulysses (A217, 376-377) on the

same issues.

A. The Suffolk County Action

Passing over the intermediate developments detailed in

the Suffolk County Decision (App. J at J4-J5), on August

31, 1998, Feldstein sued Rounick and Ulysses in Supreme

Court, Suffolk County seeking specific performance and a

4

declaratory judgment that his contract with Rounick was in

full force and effect (A119-123). In that action Ulysses

asserted four counterclaims against Feldstein seeking, inter

alia, a declaration that it was the owner of the Premises,

granting it possession and for past due rent (A282-288).

Thereafter the Suffolk County Action was intensively

litigated. Each side engaged in extensive discovery of the

other. A judicial hearing officer was appointed at Ulysses’

request to supervise discovery and preside over the

depositions (A214). At last, Ulysses moved for summary

judgment and Feldstein cross moved for summary judgment

(A179-188). Both sides submitted voluminous affidavits,

exhibits, depositions and memoranda of law (A214). Indeed,

the Suffolk County Decision states there were 47 separate

documents submitted to that Court (App. J at J2). Ulysses’

full and fair opportunity to litigate in the Suffolk County

Court is obvious from the record and it, in fact, made ample

use of that opportunity to extensively litigate the action and,

particularly, the summary judgment motions. Any further

question on that score was answered when, at the oral

argument leading up to the Eastern District dismissal, counsel

for Ulysses could provide no answer to Judge Hurley’s

questions about how Ulysses was deprived of an opportunity

to be fully heard in the Suffolk County Action (App. G at

G4-G8).

Eventually, Justice Gerard D’Emilio rendered a

decision on January 31, 2000 (App. J) granting Feldstein’s

cross-motion for summary judgment, denying Ulysses’

motion for summary judgment and holding that Feldstein

“has demonstrated his entitlement to the remedy of specific

performance” (App. J8).

5

That determination was unanimously affirmed by the

New York Appellate Division, Second Department on

October 10, 2000. Ulysses then served and filed a meritless

notice of appeal to the New York Court of Appeals, boldly

asserting that the action “directly involved the construction

of the Due Process Clauses in the United States Constitution

and the Constitution of the State of New York.” Ulysses’

defense of that notice paralleled its assertions at 9-10 of the

Petition. The New York Court of Appeals on December 21,

2000 vacated the notice, with $500 costs, on the ground “that

no substantial constitutional question is directly involved.”

Thereafter, the Appellate Division and the New York Court

of Appeals each denied successive motions for leave to

appeal to the New York Court of Appeals, indicating that

the case was not a matter of statewide importance. Thus,

Feldstein’s right to specific performance has been fully

affirmed through the entire New York court system.

B. The Dismissed Complaint

Ulysses initially instituted the present action only against

Feldstein, Morton and Gibbs (A263-A281). On April 6, 2000,

it served and filed an amended complaint (the “Amended

Complaint’) (A12-44). The Amended Complaint differs from

the original complaint in a number of major ways:

1. It discloses the existence of the Suffolk County

Decision and the Judgment entered pursuant to it (A32, 179-

_ 189) and annexes them. Moreover, “Count Two” seeks the

specifically forbidden relief of a declaration from the District

Court “that all determinations in respect of ownership, access

to and control over the Premises shall henceforth be made

by this Court and the Federal Government and not by the

6

State and Local Government Defendants” (A41). Ulysses

made this prayer for relief even though its Amended

Complaint acknowledges that the judgment of Supreme Court,

Suffolk County determining title to the Premises had been

appealed by it to the Appellate Division, Second Department,

and a stay had been ordered pending appeal (A14, 35). In other

words, simultaneously with its attempt to have a federal court

review the merits of a state court judgment, it proceeded with

its appeal from that judgment in the state court system.

Thus, the object of the Amended Complaint is to have a federal

court review the actions of a state court. To paraphrase Homola

v. McNamara, 59 F.3d 647, 650 (7th Cir. 1995), Ulysses went

from ignoring the Suffoik County Decision in the Original

Complaint to attempting to upset it in the Amended Complaint.

As wiil be discussed later, this deprives the district court of

subject matter jurisdiction.

2. It joined as added defendants, the State of New York

(subsequently voluntarily dismissed), Suffolk County, the

Incorporated Village of East Hampton and Edward P. Romaine,

in his capacity as the Clerk of Suffolk County. Thus, these

governmental entities have been made parties in a dispute

between private parties over land ownership.

3. It changes the basis of the district court’s jurisdiction

from diversity to 42 U.S.C. § 1983 by alleging a federal civil

rights claim, as well as pendent state law claims. As Judge Hurley

and the Second Circuit held, the alleged substantive

underpinnings for such concocted civil rights claim violate a

number of well established rules governing such actions.

The supposed unconstitutional acts of the municipal defendants

include:

7

(a) The County Clerk’s delay of approximately three weeks

in filing Ulysses’ deed by reason of that deed’s illegibility (A23);

(b) The County Clerk’s alleged wrongful filing of

Feldstein’s notice of pendency (lis pendens) based on his

Suffolk County Action (A23-24),

(c) The East Hampton Police Department’s alleged

violation of Ulysses’ rights by barring its representatives

from entering upon the Premises as trespassers (A30);

(d) Justice D’Emilio’s decision was allegedly so wrong

in its factual determinations and legal conclusions about New

York law that it deprived Ulysses of due process (A32-34);

and

(e) The judgment in the Suffolk County Action was

allegedly entered “improperly” (A34).

Surprisingly, in the Petition seeking this Court’s review

of a determination that a complaint does not state a claim,

Ulysses barely mentions that complaint. This failure is

particularly inexplicable in light of Judge Hurley’s specific

discussion of the complaint in his decision (App. G at G17-

G21). The Petition is especially scanty in its description of

the last seven counts of the Amended Complaint; those

alleged against the three individual defendants, Morton,

Feldstein and Gibbs, as opposed to the various municipal

defendants. In fact, the Petition merely summarizes these

claims in a single sentence (at p. 11). All of these last seven

counts rest upon Ulysses’ contention that it, not Feldstein,

is the rightful owner of the Premises, which contention was

expressly rejected by the central finding of the Suffolk

County Decision, subsequently affirmed throughout the New

York State court system. These seven counts are:

8

1. Count Three alleges intentional interference with

Ulysses’ quiet possession and enjoyment of the Premises

(A36-37). Since Ulysses has been held to have no right

whatsoever to the Premises, it follows that it has no right to

quiet possession and enjoyment.

2. Count Four alleges a conspiracy to interfere with the

purported contract of sale between Ulysses and Rounick and

the purported deed from Rounick to Ulysses pursuant to that

contract (A37). Since the state courts have found that contract

and deed to be in violation of Feldstein’s rights, that claim

must also fail.

3. Count Five alleges that Feldstein obtained rent from

Morton on the Premises. Hence, it reasons that he

“converted” that money (A38). Of course, this count is

predicated on Ulysses’ being the owner of the Premises,

which the state courts have held it is not.

4. Count Six alleges conversion of the personal property

of Rounick, the prior owner of the Premises (A38-39).

This subject was specifically dealt with by the Suffolk

County Decision, which gave Rounick the right to remove

his personal property at the time of the court-ordered deeding

of the Premises to Feldstein (App. J at J6-J7). Ulysses’ new

and unsubstantiated allegations that such personal property

was assigned to Ulysses cannot change the fact that this claim

has been adjudicated in state court.

5. Count Seven is for slander of title, but without legal

title to the Premises, there is no title to slander (A39-40).

6. Count Eight seeks an injunction directing defendants

to relinquish the Premises, as well as Rounick’s personal

9

property, to Ulysses (A40). This is, of course, the exact

opposite of the relief ordered by the state courts. Such relief

had been requested by Ulysses in its counterclaims in the

Suffolk County Action and in its motion for smmary

judgment and was specifically denied by the state courts.

7. Finally, Count Nine seeks a declaratory judgment that

Ulysses is the rightful owner of the Premises (A41).

However, there is now a final state court determination

declaring that Feldstein is the rightful owner of the Premises.

C. The Prior Proceedings

Shortly after amending its complaint, Ulysses moved for

preliminary injunctive relief by order to show cause (A2).

Morton and Feldstein cross-moved to dismiss the complaint

based on the Rooker-Feldman doctrine and the doctrines of

res judicata and collateral estoppel (A205-405). At the oral

argument on May 12, 2000 (A406-450), while putting off

the determination of the dismissal motions for further

consideration, Judge Hurley denied Ulysses’ injunction

motion upon the grounds that, in the light of the Suffolk

County Decision and the res judicata effect which had to be

given it, Ulysses had not shown the necessary likelihood of

success (A440-446). Making that determination even more

cogent is Judge Hurley’s specific assumption for the purposes

of that decision that he had subject matter jurisdiction (A425).

Thus, he found no likelihood of success prior to even

considering the critical issue of subject matter jurisdiction,

which he and the Second Circuit subsequently decided

against Ulysses. At that point, Ulysses’ persistence in

maintaining this action became frivolous. See Kahne-

Richards Family Foundation v. Village of Baldwinsville, 953

F. Supp. 39 (N.D.N.Y. 1997), affirmed without opinion,

10

141 F.3d 1151 (2d Cir. 1998). That case awarded sanctions

under Rule 11, F.R.C.P. for persisting in a litigation after

the District Court denied a provisional remedy because of the

preclusive effect of a prior state court judgment.

Ulysses submitted a memorandum of law on the Individual

Defendants’ motions to dismiss (as well as on those of the

municipal defendants) wherein it made two arguments with

respect to those motions: (1) that it was denied a fair and full

opportunity to litigate in the Suffolk County Action; and

(2) essentially the same argument it advanced in the Second

Circuit and in its Petition as to its constitutional rights as

a “title holder” before the Suffolk County Decision.

Not surprisingly, it has not made its “full and fair opportunity

to litigate” argument to either the Second Circuit or this Court

since it was unable to explain how, in answer to the questions

of Judge Hurley at oral argument, it was denied such an

opportunity in the Suffolk County Action (App. G at G4-G8).

As indicated, on August 1, 2000, Judge Hurley, following

a detailed analysis of the complaint (App. G at G17-G21),

dismissed the complaint against the Individual Defendants after

oral argument of the dismissal motions (App. G) for both lack

of subject matter jurisdiction pursuant to the Rooker-Feldman

doctrine (App. G at G2 1-26) and for failure to state a claim by

reason of res judicata and collateral estoppel (App. G at G26-

G27). He also dismissed the complaint against the municipal

defendants for failure to state a claim under 42 U.S.C. § 1983

(App. G at G27-G33).

Judge Hurley’s dismissal was unanimously affirmed by the

Second Circuit in a summary order dated April 18, 2001

(App. A). Significantly, while Ulysses is trying to convince this

Court to favor its Petition over the mountain of other

11

certiorari petitions before it because the case supposedly

presents issues of sufficient nationwide importance that it

merits this Court’s attention, the Second Circuit believed

“that no jurisprudential purpose would be served by a written

opinion” which could be cited in unrelated cases (2d Cir.

Local Rule § 0.23). The Second Circuit agreed that the case

against the individual defendants “is plainly prohibited by

Rooker-Feldman” and that the allegations “concerning the

municipal defendants fail to state a claim under § 1983

because they allege no municipal practice or policy”

(App. A at A3).

_D. Ulysses’ Other Actions

Before advancing to the argument section, we need first

refer to the prior and subsequent actions brought by Ulysses

on these same issues, as well as the parallel conduct of its

principal, Sheldon Solow.

Ulysses’ conduct throughout the dispute about the

Premises manifests its penchant for litigating without regard

for the law, the facts or even the prior court determinations.

This action is one of seven in which Ulysses has trotted out

its now rejected contentions of law and fact. The first is, of

course, the Suffolk County Action in which, as indicated, it

asserted counterclaims (A290-335). Then it brought a

summary proceeding in the Village Court, East Hampton, to

recover possession of the Premises from Feldstein in a

summary proceeding of such little merit it withdrew it after

Feldstein served opposing papers (A215, 336-339). Then, it

brought an earlier action in the Eastern District against

Morton, but not Feldstein (A340-350). Ultimately, that action

was dismissed for failure to join Feldstein, who was held to

be an indispensable party (A351-371). Later, Ulysses brought

12

an action in Supreme Court, New York County (Manhattan),

seeking discovery from a company, one of whose officers

had submitted a factual affidavit in connection with the

Suffolk County motions (A491-495), which was dismissed

off the bench by that court. |

Ulysses and another of Sheldon Solow’s corporate shells

unsuccessfully tried yet again to block specific performance

via the United States Bankruptcy Court for the Southern

District of Florida in the context of a bankruptcy proceeding

involving a corporation with which Feldstein was affiliated.

Finally, Ulysses has filed (but not yet served) an action against

Morton and Feldstein and their lawyers personally, as well

as Gibbs, the Clerk of Suffolk County, members of the

East Hampton police force and others under the Racketeer

Influenced and Corrupt Organization Act (“RICO”),

18 U.S.C. § 1961, et seq. in the United States District Court

for the Southern District of New York, even though the

Eastern District has territorial jurisdiction of the Premises

and has been the venue of two prior actions. It also filed a

notice of pendency (/is pendens) with the Clerk of Suffolk

County based on this Eastern District action after the Eastern

District Action had been dismissed by Judge Hurley.

Ulysses’ multiple litigations and its disregard for the

principles of res judicata and collateral estoppel are

characteristic of its principal, Sheldon Solow.*

4. See e.g., Morgan Guaranty Trust Co. v. Solow, 114 A.D.2d

818, 495 N.Y.S.2d 674 (Ist Dept. 1985), affirmed summarily,

68 N.Y.2d 779, 506 N.Y.S.2d 674 (1986); Avon Products, Inc. v.

Solow, 215 A.D.2d 247,626 N.Y.S.2d 493 (ist Dept. 1995), ibid.

270 A.D.2d 122,704 N.Y.S.2d 255 (1st Dept. 2000); Solow v.

Liebman, 253 A.D.2d 808, 677 N.Y.S.2d 622 (2d Dept. 1998), ibid.

262 A.D.2d 693, 692 N.Y.S.2d 693 (2d Dept. 1999).

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13

SUMMARY OF ARGUMENT

Since Ulysses’ claims against the individual defendants

all involve title to the Premises and hence call for reversal

of the state court determination, they are barred by Rooker-

Feldman. This is manifested by the attack on the legal and

factual merits of the state court determination in Ulysses’

complaint and even in the Petition. In any event, there are

adequate state grounds — res judicata and collateral estoppel

— for the dismissal at issue.

Ulysses’ claim of a constitutional right to the Premises

is irrelevant to its state law claims against the Individual

Defendants since the state law claims are meritless, as

established by the contracts here and Ulysses’ long history

of failure to be put into interim possession through the courts.

The constitutional claims have even less merit when

examined individually and, in reality, what Ulysses is

asserting is a constitutional right to trespass, while its claims

concerning the Suffolk County Clerk s handling of land

records could not withstand Judge Hurley’s questions to its

counsel

REASONS FOR DENYING THE WRIT

g.

THE DISTRICT COURT LACKED JURISDICTION

UNDER THE ROOKER-FELDMAN DOCTRINE

All that need be said about the Rooker-Feldman doctrine

was said by the Second Circuit in its summary order:

Under the so-called Rooker-Feldman doctrine,

because only the United States Supreme Court can

14

entertain an appeal to reverse or modify a state court

decision, if a plaintiff's claims are “inextricably

intertwined” with a state court’s determinations, a

federal district court is without jurisdiction to hear

those claims. See Moccio v. New York State Office

of Court Admin., 95 F.3d 195, 198 (2d Cir. 1996)

(citing Rooker v. Fidelity Trust Co., 263 U.S 413,

415-16 (1923) and Feldman v. District of Columbia

Court of Appeals, 460 U.S. 462 482-84 n.16 (1983)).

We affirm the district court’s conclusion that

Ulysses’ claims against the individual defendants

are barred under the Rooker-Feldman doctrine,

because these claims all require, at least in part, a

determination that Ulysses has property rights in the

premises at issue. As such, an adjudication

of these claims would necessitate review of

Justice D’Emilio’s decision, which is plainly

prohibited by Rooker-Feldman. (Emphasis added.)

(App. A at A3)

The Second Circuit was careful to limit its statement to

“Ulysses’ claims against the individual defendants.”

In contrast, Point I of the Petition does not even discuss the

claims against the Individual Defendants. This parallels Ulysses’

posture before the Second Circuit. In its reply brief there, it did

not even mention either the claims against the Individual

Defendants or Rooker-Feldman. Instead, it devoted its attention

to the claims against the municipal defendants and even there

largely to an irrelevant tirade about press reports of allegations

of misbehavior by the Suffolk County Police towards female

motorists. Now Ulysses has the audacity to seek certiorari to

reverse a ruling Ulysses has not deigned to even argue to this

Court or the Court of Appeals.

15

The best proof of the applicability of Rooker-Feldman

is the prayer for relief in Ulysses’ complaint under its

second count, which seeks a judgment “declaring that all

determinations in respect of ownership, access to and control

over the Premises shall henceforth be made by this Court

and the Federal Government and not by the State and Local

Government Defendants” (A41). That demand is so frivolous

that it would be improper if what were involved was a still

undecided state court case under Younger v. Harris, 401 U.S.

37 (1971) and its application to state civil actions under such

cases as Juidice v. Wall, 430 U.S. 321 (1977); Trainor v.

Harris, 431 U.S. 434 (1977) and Pennzoil Co. v. Texaco,

Inc., 481 U.S. 1 (1987). Such demand is even more improper

after the state court action has gone to judgment and thus

must fall under Rooker-Feldman.

An examination of Section E of the Ulysses amended

complaint (A32-34) establishes that what Ulysses sought was

a reversal of the subsequently affirmed Suffolk County

Decision. That section rehashes Ulysses’ now familiar

contentions about the facts and New York State law and

contends that Justice D’Emilio’s failure to agree with them

constitutes a deprivation of due process. Under Rooker-

Feldman, the district court lacked jurisdiction to hear such a

claim.

The Petition follows Ulysses’ familiar pattern in the

federal courts: an attack on the actions of the state courts.

The Petition is at war with itself. With one voice, it contends

that Rooker-Feldman does not apply, and in another and more

pervasive one repeatedly asserts that the New York State

courts were wrong. Thus, it says that the affirmed state

court determination was “albeit erroneous” (at p. 2). In its

Statement of Facts, Ulysses drags out a number of its

16

contentions relative to New York law and the underlying facts

which it had previously made unsuccessfully to the New York

courts, to wit:

(1) Feldstein allegedly informed Rounick he was having

financial difficulties (at_p. 3).

(2) Feldstein purported to assign his rights and

obligations to Morton (at p. 4).

(3) Feldstein allegedly wrongfully changed the terms

of his contract with Rounick (at pp. 4-5).

(4) Rounick allegedly “reasonably and rightfully

determined” that Feldstein “renounced his contract and

forfeited his rights under it” (at pp. 5-6).

(5) Feldstein allegedly breached his contract with

Rounick by failing to pay the taxes on the Premises or the

moneys supposedly still due Rounick or Ulysses under it

(at p. 6).

(6) Feldstein, Morton and Gibbs allegedly conspired to

destroy or damage the Premises (at pp. 7-8).

(7) Feldstein was allegedly not ready, willing and able

to close title (at p. 9).

(8) The procedure in entering the judgment was

allegedly improper (at pp. 9-10).

At p. 10 of its Petition, Ulysses asserts that the Second

Department affirmed the Suffolk County judgment

“Notwithstanding all of these grievous errors of law and

ERNIE L WROTE PEN Tt et

17

irregularities in the Judgment itself.” Thus, Ulysses is asking

this Court to ignore Rooker-Feldman and accept the same

arguments the New York courts have already rejected.

In this, Ulysses is reverting to the pattern it employed

when the earlier Eastern District action against Morton alone

and the Suffolk County Action were both pending. In those

actions, Ulysses repeatedly tried to take two bites of every

apple. Thus, it sought discovery from the Eastern District

that had been previously denied by the state court and

injunctive relief from the state court that had been repeatedly -

denied by the Eastern District (A218-219). Such injunction

was stayed by the Appellate Division, Second Department

before being mooted by the Decision on the merits. Of course,

Ulysses is now trying to achieve the ultimate in double

dipping: review of a state trial court judgment by a federal

district court after it had been affirmed by the state appellate

courts.

Rooker-Feldman is a recognition that relitigating in

federal court a dispute already adjudicated in state court is

improper. This case presents a text book example of the

wisdom of that doctrine.

As Judge Hurley recognized in his denial of a preliminary

injunction, even in the absence of the Rooker-Feldman

doctrine, the claims asserted by Ulysses against the

individual defendants would still be barred. In the first place,

they are barred by 28 U.S.C. § 1738, which mandates that

judicial proceedings of any court of any State “shall have

the same full faith and credit in every court within the United

States . . . as they have by law or usage in the courts of such

State.” As this Court said in Migra v. Warren City School

District, 465 U.S. 75 (1984). “It is now well settled that a

18

federal court must give to a state court judgment the same

preclusive effect as would be given that judgment under

the law of the State in which the judgment was rendered”

(at p. 81). Migra went on to dismiss a § 1983 claim in a

federal case after an unsuccessful state court litigation in

which there was no allegation of a § 1983 claim, stating:

That statute embodies the view that it is more

important to give full faith and credit to state-court

judgments than to ensure separate forums for

~ federal and state claims. This reflects a variety of

concerns, including notions of comity, the need

to prevent vexatious litigation, and a desire to

conserve judicial resources.

Other decisions of this Court, Federated Department

Stores, Inc. v. Moitie, 452 U.S. 344 (1981), as well as those

of both the Second Circuit applying New York law, Flaherty

v. Lang, 199 F.3d 615 (1999); Norris v. Grosvenor

Marketing, Ltd., 803 F.2d 1281(1986); and the New York

Court of Appeals, Yonkers Contracting Co. v. Port Authority,

93 N.Y.2d 375, 640 N.Y.S.2d 512 (1999); Reily v. Reid, 45

N.Y.2d 24, 407 N.Y.S.2d 645 (1978), rigorously forbid

litigating claims (res judicata) and issues (collateral estoppel)

which were litigated or could have been litigated in suits

where, as here, the plaintiff in the new action had a full and

fair opportunity to contest the previous litigation.

As demonstrated in a claim by claim analysis of the

Amended Complaint, supra at pp. 7-8, each and every claim

alleged against Morton, Feldstein and Gibbs has been decided

against Ulysses by the New York courts, particularly the key

issue of entitlement to the Premises. Thus, even were the

district court to have jurisdiction over this action, the

te MEA SRE NOT

19

Amended Complaint would still fall under New York law as

a result of its doctrines of res judicata and collateral estoppel.

Thus, the decision Ulysses seeks to reverse rests upon both

the federal ground of Rooker-Feldman and the state ground

of res judicata and collateral estoppel.

Il.

ULYSSES HAS NOT ALLEGED A § 1983 CLAIM

Ulysses’ principal argument indeed its only argument

other than rehashing the contentions rejected by the New

York Courts, is that the various municipal defendants

unconstitutionally interfered with its “rights” to the Premises

in the period between its purported acquisition of title and

the Suffolk County Supreme Court’s decision. Ulysses has

not alleged these claims against the Individual Defendants,

hence this argument does not even pertain to their motions.

Moreover, Ulysses contends that even though its deed

to the Premises was held by the state court determination to

be invalid and its acquisition of such title was suspect, it

nevertheless had ownership rights entitled to constitutional

protection prior to that determination. This argument is

specious, since Ulysses took title expressly subject to

Feldstein’s right of occupancy. Its contract with Rounick,

the purported seller, and its accompanying purchase money

mortgage specify Ulysses’ rights are subject to Feldstein’s

rights (A83, 94). Moreover, pursuant to Rounick’s earlier

contract with Feldstein, Feldstein is expressly given the

exclusive right “to use and enjoy the property” (A44).

20

Ulysses’ claim of right to possession is further belied by

its universally unsuccessful, repeated attempts in both of its

Eastern District actions, in the Suffolk County Court and

subsequently in the Second Department, to obtain occupancy

by serial preliminary injunction motions (A220).

Additional evidence of the meritless nature of Ulysses’

claim of some rights in the Premises while the rights of the

parties were sub judice in Suffolk County is its abandonment

of its action to acquire possession in the Village Court of

East Hampton upon being served with opposition papers

(A215, 336-339). In light of Ulysses’ penchant for persisting

in litigation whether or not the litigation has any validity, a

law suit abandoned by Ulysses after it receives opposing

papers must have been meritless indeed.

Moreover, the multiple judicial rejections of Ulysses’

claim to possession undercut Ulysses’ contention that a

failure to reverse “invites chaos” (at p. 18). Ulysses applied

unsuccessfully to four different courts, three state and one

federal, in its effort to get possession. Thus, its failure to

obtain possession is the result of consistent court decisions

and not some purportedly unconstitutional actions by the

local governments.

The speciousness of Ulysses’ claims becomes even more

apparent when they are examined one by one. The most

outrageous is the claim that its constitutional rights were

violated by the East Hampton police barring Ulysses’

representatives entering from the Premises. In other words,

Ulysses contends that the Constitution affords it the right to

trespass on property lawfully in possession of another

and that its rights were infringed because the local police

did not unilaterally give to Ulysses the possession of the

21

Premises that the courts refused to grant.’ Rather than

being unconstitutional violations of Ulysses’ rights, the

performance of their duty by East Hampton police prevented

further harassment of the lawful occupants of the Premises

by Ulysses. \

As with Ulysses’ assertion that it did not have a full and

fair opportunity to litigate, its contention that the County

Clerk’s treatment of its deed® and Feldstein’s notice of

pendency violated its constitutional rights did not survive

Judge Hurley’s questions to Ulysses’ counsel at the oral

argument of the dismissal motions about how Ulysses was

damaged (App. G at G13-G14). As Judge Hurley pointed

out, these actions in no way harmed Ulysses. This is

particularly so since Ulysses’ own contract with Rounick

evidenced its awareness of Feldstein’s rights and even

specifically made Ulysses subject to Feldstein’s rights

Moreover, as held in Brown v. Bethlehem Terrace Associates,

136 A.D.2d 222, 525 N.Y.S.2d 978 (3d Dept. 1988) and

35-45 May Associates v. Mayloc Associates, 162 A.D.2d 389,

557 N.Y.S.2d 41 (1st Dept. 1990), under New York law a

notice of pendency is an undeniable true statement of the

existence of an action for specific performance.

5. The absurdity of this contention is compounded by Ulysses’

track record of flying helicopters over the Premises, attempting to

cut off or interfere with the electrical power to the Premises and

otherwise harassing its occupants. This behavior was enjoined by

the Second Department pending appeal on August 24, 2000.

6. Ulysses’ unhappiness with the County Clerk’s requirement

of a legible deed for recording purposes shows ignorance of

New York’s Civil Practice Law and Rules 8019(b) mandating the

use of legible documents for filing by the County Clerk.

22

CONCLUSION

For all the reasons stated herein, we respectfully submit

that the Petition be denied.

Respectfully submitted,

PHILIP PIERCE

Counsel of Record

MARGOLIN & PiERcE, LLP

1370 Avenue of the Americas

‘New York, NY 10019

(212) 247-4844

Counsel for Respondents

Peter Morton and Mara Gibbs

KEVIN L. SMITH

Counsel of Record

STROOCK & StRoocK & LavaN, LLP

180 Maiden Lane

New York, NY 10038-4982

(212) 806-5400

Counsel for Respondent

Gary Feldstein

PP Ba GOT ae

a i hs 2