Appendix — Dibbs v. Roldan (No. 07-1343)

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O71 54 5apR1 52

OFFICE OF THE CLERK

STEPHEN DIBBS,

Petitioner, pro se,

-against-

PAUL ROLDAN, Commissioner, New York State

Division of Housing and Community Renewal, (the

“DHCR”)

JOHN MULHOLLAND, idinddiateator, DHCR,

DENNIS RYAN, Commissioner, DHCR

BUILDING INSPECTORS of New York City

Department of Housing Preservation aid

Development, ( “HPD” )

JERILYN PERINE, Commissioner, HPD,

PATRICIA LANCASTER, Commissioner, New York

City Department of Buildings ( “DOB” ),

KENNETH PODZIBA, Commissioner, New York City

Board of Standards and Appeals (“BSA”),

TEN BE OR NOT TEN BE, INC., (landlord), TIM

GREENFIELD-SANDERS (landlord), LAWRENCE

PINNER (Landlord’s architect),

JOAN LOBIS,CAROL HUFF, EILEEN BRANSTEN,

New York State Supreme Court Judges,

Respondents

On Petition for Wnt of Certiorari to the United

States Court of Appeal for the Second Circuit

APPENDIX FOR WRIT OF CERTIORARI!

Stephen Dibbs, pro se

P.O. Box 2148

New York, N.Y.; 10009

(212) 674-5559

05-6807 SDNY(New York City)

Dibbs v Roldan 03-cv-913

Pitman, Henry (tri)

Sprizzo, John (trj)

UNITED STATE COURT OF APPEALS FOR THE

SECOND CIRCUIT

SUMMARY ORDER

At a stated Term of the United States Court

of Appeals for the Second Circuit, held at the Daniel

Patrick Moynihan United States Courthouse, 500

Pear! Street, in the City of New York, on the 28th day

of November, two thousand and seven.

PRESENT:

HON. RALPH K. WINTER

HON JOHN M. WALKDER, JR.,

HON. GUIDO CALABRESI

Circuit judges,

STEPHEN DIBBS,

Counter-Defendanat,

v. No. 05-6807-cv

Paul A. Roldan, New York Division of Housing

& Community Renewal, JOHN MULHOLLAND

NEW YORK STATE DIVISION OF HOUSING&

COMMUNITY RENEWAL, DENNIS RYAN,

COMMISSIONER, VARIOUS UNSPECIFIED

BUILDING INSPECTORS, JERILYN PERINEI

COMMISSIONER OF NEW YORK CITY

DEPARTMENT OF BUILDINGS, PATRICIA

LANCASTER, COMMISSIONER OF NEW YORK

CITY DEPARTMENT OF BUILDINGS, KENNETH

PODZIBA, COMMISSIONER OF NEW YORK CITY

1 Appendix A

BOARD OF STANDARDS AND APPEALS,

LAWRENCE PINNER, LANDLORD’S ARCHI-

TECT, JOAN LOBIS, NEW YORK STATE

SUPREME

COURT JUDGE, CAROL HUFF, NEW YORK

STATE

SUPREME COURT JUDGE, EILEEN BRANSTEN,

NEW YORK SUPREME COURT JUDGE,

Defeendants-appellees,

TEN '3£ OR NOT TEN BE, INC., TIM GREEN-

FIELD-SANDERS

Counter-Claimants,

STEPHEN DIBBS,

Counter-Defendant

FOR APPELLANT: STEPHEN DIBBS, pro se, New

York

N.Y.

FOR APPELLEES: CECELIA CHANG, Assistant

Solicitor General for Andrew M. Cuomo, Attorney

General of the State of New York (Barbara D.

Underwood & Benjamin N. Gutman, of councel) New

York, N.Y.

UPON DUE CONSIDERATION, of this appeal

from a judgment of the United States District Court

for the Southern District of New York, (Sprizzo,J.) it

is hereby ORDERED, ADJUDGED AND

DECREED, that the judgment of the district court is

AFFIRMED. Defendant-Appellee Pinner’s motion to

2 Appendix A

withdraw from the appeal is DISMISSED AS

MOOT.

Stephen Dibbs appeals from a judgment of the

United States District Court for the Southern

District of New York entered on October 6, 2005.

Judge Sprizzo dismissed Dibbs’ complaint in its

entirety for failure to state a claim upon which relief

could be granted against any of the defendants.

We affirm, substantially for the reasons

stated in the thorough and well-reasoned opinion of

the court below. Insofar as the decision of the

Supreme Court in Exxon Mobil Corp. v. Saudi Basic

Indus. Corp., 544 U.S. 280 (2005), may have raised

new questions with respect to the apphcability on

the Rooker-Feldman doctrine to Dibbs’ Takings

claim, the district court’s conclusion is, in any case,

fully supported by the New York preclusion law. See

Hoblock v Albany County Bd. Of Elections, 422 F.3f

77, 94 (2d Cir 2005).

The judgment of the district court is

AFFIRMED. Defendant-Appellee Pinner’s motion to

withdraw from the appeal is DISMISSED AS MOOT.

For the Court,

CATHERIN E O’'HAGAN WOLFE, Clerk of the Court

By: [illegible signature]

3 Appendix A

356 F. Supp. 2d 340, *; 2005 U.S. Dist. LEXIS 2280,

**

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

STEPHEN DIBBS,

Plaintiff pro se,

03civ0913(J ES)

-against- MEMORANDUM ORDER

AND OPINION

PAUL ROLDAN, Deputy Commissioner, New York

State Division of Housing and Community Renewal,

JOHN MULHOLLAND, administrator, New York

State Division of Housing and Community Renewal,

NEW YORK STATE DIVISION OF HOUSING AND

COMMUNITY RENEWAL, DENNIS RYAN,

Commissioner, New York State Division of Housing

and Community Renewal, VARIOUS unspecified

BUILDING INSPECTORS of New York City

Department of Housing Preservation and

Development, JERILYN PERINE, Commissioner,

New York City Department of Housing

Preservation and Development, PATRICIA

LANCASTER, Commissioner, New York City

Department of Buildings, KENNETH PODZIBA,

Commissioner, New York City Board of

Standards and Appeals, TEN BE OR NOT TEN BE,

INC., dandlord), TIM GREENFIELD-SANDERS

(landlord), LAWRENCE PINNER (landlord's

architect), JOAN LOBIS, New York Supreme Court

Judge, CAROL HUFF, New York Supreme Court

Judge, ELLEEN BRANSTEN, New York Supreme

Court Judge,

Appendix B 4

Defendants.

SPRIZZO, D.J.:

Plaintiff pro se Stephen Dibbs ("plaintiff or

"Dibbs ") brings the above-captioned action against

employees of various New York City and New York

State administrative agencies, the agencies

themselves, three justices of the New York State

Supreme Court, New York County, his landlord, and

an architect in the employ of his landlord, pursuant

to the Civil Rights Act, 42 U.S.C. 8 1983, and the

Racketeer Influenced and Corrupt Organization Act

("RICO"), 18 U.S.C. 8B 1961-68, seeking declaratory

and injunctive relief in addition to damages and a

mandamus. Defendants move to dismiss plaintiff's

Complaint pursuant to Fed. R. Civ. Pro. 12(b)(1) and

(6), and plaintiff cross-moves for an order staying the

federal court proceedings. For the reasons set forth

below, the Court dismisses the Complaint against

all moving defendants. 1

FOOTNOTES

1 Landlord defendants Ten Be or Not Ten Be, Inc.

and Tim Greenfield-Sanders have not moved to

dismiss plaintiff's Complaint as of this time and the

Complaint therefore is not dismissed against them.

BACKGROUND

The following facts are taken from plaintiff's

Complaint or documents referenced therein.

Liberally interpreted, plaintiff's Complaint describes

a tortured landlord-tenant dispute, which has

Appendix B 5

resulted in multiple prior litigations. The property at

issue is located at 155 Avenue B in Manhattan.

Complaint ("Compl.") P27. Dibbs is the rent

stabilized tenant of "an unlegalized residential

apartment" on the ground floor of the building ("the

apartment"). Compl. P1, 26-27. He first rented the

apartment in 1978. Id. PP26. Defendants Ten Be or

Not Ten Be, Inc. and Tim Greenfield-Sanders,

president of Ten Be or Not Ten Be, Inc., (collectively

"the landlord" [*344] or “landlord defendants")

became the landlord of the building in 1984. See id.

PP2, 29. Plaintiff alleges that, shortly thereafter, the

landlord "engaged [in] a protracted course of

harassment against me by withholding the legally

required heat, water, ventilation, etc, and producing

dangerous and illegal conditions that evicted me

from portions of the apartment." Id. P2; see id. PP29-

41.

In response, plaintiff began withholding his

rent. Id. P38. Then, in March 1993, the New York

City Department [**4] of Housing Preservation and

Development ("HPD") issued a Notice of Violation

("notice") alerting the landlord that a security gate

outside plaintiff's apartment violated governing

building codes and had to be removed. See id. PP3,

50, 58, 75, 153; Dibbs v. Tornicasa, 1999 U.S. Dist.

LEXIS 3284, No. 98 Civ. 2102, 1999 WL 156359, at

*1 (S.D.N.Y. Mar. 23, 1999). This security gate

completed the enclosure of an area measuring

approximately sixty square feet in size, bordered on

either side by the neighboring buildings, at the back

by the front wall of Dibbs ' apartment, and toward

the sidewalk by a section of iron fence and by the

gate. See Compl. P46. While plaintiff was away in

Appendix B 6

Florida, the landlord removed the security gate

without plaintiff's permission, enabling free access to

the enclosure where Dibbs had stored some of his

belongings. See id. PP45-50; Dibbs, 1999 U.S. Dist.

LEXIS 3284, 1999 WL 156359, at *1.

Upon his return Dibbs discovered what had

taken place and filed three complaints with the New

York State Division of Housing and Community

Renewal ("DHCR’"), alleging harassment, reduced

services, and lack of heat and hot water. See Compl.

PP51-53; Dibbs v. Tornicasa, 1999 U.S. Dist. LEXIS

19195, No. 98 Civ. 2102, 1999 WL 1201709, [**5]

at *1 (S.D.N.Y. Dec. 14, 1999). Four months after his

complaints were filed an informal conference was

held, including defendant Mulholland, DHCR

administrator, the landlord and his wife, and a

heating mechanic. Compl. PP54, 60. At the

conference, which allegedly began before plaintiff

arrived, the landlord explained that he removed the

gate along with plaintiff's household belongings

stored in the area because of the building code

violation he had received. Id. PP55, 58. Plaintiff

claims that defendant Mulholland refused to allow

him to speak, and that the conference was eventually

moved into a back room where it continued without

plaintiff. Id. PP57, 60.

That same month defendant Mulholland

issued an order directing the landlord to submit an

architect's report explaining how to rebuild the gate

without violating building codes. Dibbs, 1999 U.S.

Dist. LEXIS 19195, 1999 WL 1201709, at *2; see

Compl. P64. The landlord hired architect defendant

Pinner to furnish such a report. Dibbs, 1999 U.S.

Dist. LEXIS 3284, 1999 WL 156359, at *2. Pinner,

Appendix B 7

however, “instead of submitting a report on restoring

security iron workOsent at least two letters to

Mulholland, stating that he didn't think that iron

work was permissible, and intimidated

administrator Mulholland to change his order."

Compl. P67. Dibbs was not made aware of these "ex

parte" communications at the time. Id. P68.

Allegedly in response to Pinner's communications,

Mulholland "changed his mind" and, on February 9,

1994, decided that he “was only going to install

window bars over the existing windows0." Id. PP73,

86.

Plaintiff next filed a Petition for

Administrative Review ("PAR"). This PAR was

sent back by the DHCR director because it was “an

inappropriate means to object to Mr. Mulholland's

determination." Id. P91.

On June 28, 1994, the DHCR dismissed Dibbs

‘complaints. See id. P96.

Not to be deterred, on December 20, 1994,

Dibbs commenced an Article 78 proceeding seeking a

declaration that the DHCR's failure to issue a

finding of harassment constituted an abuse of

discretion. See id. P100; State Defs.' Notice of Mot.,

dated Aug. 22, 2003 ("Notice of Motion"), Exhibit

("Ex.") A, Feb. 14, 1995 Decision and Order of Justice

Joan B. Lobis, ("Lobis Decision") at 1. The Court

dismissed Dibbs ' petition because, in the absence of

a final order from the DHCR, there was no basis for

it. See Lobis Decision at 2; Compl. P103. The

Appellate Division affirmed, and the Court of

Appeals denied Dibbs ' further appeal. Compl.

PP 106, 107. 2

Appendix B 8

FOOTNOTES

2 On April 1, 1996 Dibbs commenced a state court

action, index number 105918/96, against the

landlord and architect Pinner. See Dibbs, 1999 U.S.

Dist. LEXIS 3284, 1999 WL 156359, at *2. That

action was dismissed without prejudice on the

grounds that Dibbs failed to oppose defendants'

motions to dismiss. See Notice of Motion, Ex. F, Nov.

19, 2002 Decision by Justice Eileen Bransten ("Nov.

2002 Bransten Decision"), at 5.

end of footnote

On March 23, 1998, Dibbs filed suit in this

Court against defendants Ernest Tornicasa and R.

Berry of the HPD, John Mulholland of the DHCR,

landlord Tim Greenfield-Sanders, and architect

Pinner. Dibbs, 1999 U.S. Dist. LEXIS 3284, 1999 WL

156359, at *1-2. Dibbs ' complaint contained three

types of allegations: "Category 1: Defendant Sanders

entered Plaintiff's residence without permission,

caused damage, and refused to repair that damage;

Category 2: Defendants Sanders, Pinner, [**8]

Mulholland, Tornicasa, and Berry prevented the fair

processing of Plaintiff's harassment complaint;

Category 3: Defendant Mulholland and the DHCR

have failed to take any final action on Plaintiff's

harassment complaint." 1999 U.S. Dist. LEXIS 3284,

[WL] at *3. In its March 23, 1999 decision this Court

dismissed plaintiff's category two claims against all

defendants, with the exception of defendant Sanders

who at that time had failed to file a motion to

dismiss, declaring them time-barred. 1999 U.S. Dist.

LEXIS 3284, [WL] at *5.

Appendix B

Subsequently, in its December 14, 1999

decision, this Court dismissed the remainder of

plaintiff's complaint. The Court found that Dibbs '

claims that landlord Sanders prevented the fair

processing of his harassment complaint, broke into

his apartment, took his personal belongings,

demolished the security gate and boarded over the

windows and inner door, were all time-barred. See

Dibbs, 1999 U.S. Dist. LEXIS 19195, 1999 WL

1201709, at *4. The Court additionally determined

that Dibbs ' claim that the landlord tried to evict him

by interfering with all of his essential services

including heat, water and electricity failed “for want

of a sufficient allegation that Defendant Sanders'

conduct constituted state action" as required [**9]

by 8B 1983. 3 See 1999 U.S. Dist. LEXIS 19195, [WL]

at *5.

FOOTNOTES

3 The Court alternatively found that, to the extent

that Dibbs ' third claim directed at the landlord was

a state claim, it would decline to exercise

supplemental jurisdiction over it given its dismissal

of plaintiff's 8B 1983 claims. See Dibbs, 1999 U.S.

Dist. LEXIS 19195, 1999 WL 1201709, at *5.

end of footnote

As for defendant Mulholland, Dibbs had alleged

"that his due process rights were violated by the

DHCR's decision not to commence a formal hearing

on his harassment complaint that would have

resulted in a final order subject to judicial review."

See 1999 U.S. Dist. LEXIS 19195, [WL] at *6. The

Court granted defendant's motion for summary

judgment on this claim finding that the relevant

Appendix B 10

New York law provisions did not confer on

harassment complainants the right to a formal

hearing om thoix complainte rooulting mn 92 final arder

subject to judicial review, and therefore "Defendant

Mulholland's decision to close the inquiry into

Plaintiff's harassment complaint without ordering a

formal hearing thereon did not violate Piaintiff's

[**10] due process rights." 1999 U.S. Dist. LEXIS

19195, [WL] at *7.

Just prior to this final dismissal, in an order

dated June 2, 1999, the DHCR Rent Administrator

granted the landlord permission to remove the gate,

and ordered a [*346] compensatory rent reduction

for Dibbs in the amount of $ 27 per month. See

Compi., Ex. 1, Order of DHCR, dated Feb. 8, 2000, at

1. Both Dibbs and the landlord filed PARs of this

decision. See id. On February 8, 2000, the DHCR

ruled on the PARs writing that "the evidence in the

record below including the letters from the

harassment proceeding, does not support the

contention that the installation of a new type of gate

with a door would result in a HPD approval" and

that the decision granting permission to remove the

gate therefore was not in error. See id. at 3. The

DHCR additionally ruled that the grant of a decrease

in rent commensurate with the decrease in services

was appropriate, but that the decrease granted was

too large, and should only have been $ 12 per month.

See id. at 4. In a subsequent order dated September

14, 2000, the DHCR affirmed a Rent Administrator's

determination that an unrelated rent reduction could

be discontinued because services had been fully

restored. See Notice of Motion, Ex. F, Nov. 19, 2002

Decision by Justice Eileen Bransten ("Nov. 2002

Appendix B 17

Bransten Decision"), at 4; Compl. P114.

Shortly before the DHCR's final order was

released, Dibbs filed a second Article 78 proceeding

alleging wrongful deprivation of his living space

resulting from the removal of the security gate.

Compl. P116. The petition was denied as to the

landlord defendants because they "are non-

governmental parties who are plainly not subject to

Article 78 proceedings in this context." Notice of

Motion, Ex. C, Apr. 6, 2000 Decision of Justice Carol

E. Huff ("Huff Decision"), at 2. The petition was also

denied as to Tornicasa and the HPD because claims

based upon the same factual background had

previously been dismissed as time-barred by this

Court. Id. The petition was denied as to Mulholland

and the DHCR because, to the extent such claims

had not been previously dismissed by this Court, .

they were the subject of the pending PARs. Id. These

PARs were not decided until February 8, 2000, after

Dibbs ' petition had been filed. Id. However, Justice

Huff determined that, since Dibbs had filed a

motion to amend his petition to include review of the

February 8, 2000 DHCR [**12] determination

within the sixty-day statute of limitations for an

Article 78 proceeding, he should be given leave to file

a new petition based on that determination. Id.

Dibbs appealed Justice Huff's decisions and,

on March 5, 2002, the Appellate Division determined

that the DHCR had not abused its discretion in

closing Dibbs ' harassment complaint. Dibbs v.

Mulholland, 292 A.D.2d 164, 164-65, 738 N.Y.S.2d

203, 203 (1st Dep't 2002). The Appellate Division

further stated that the issue of reduction of services

and rent was not before it to consider, as Dibbs,

Appendix B 12

despite having opportunity to do so, haci failed to

timely commence a proceeding properly challenging

that determination. 4 See id. at 165, 738 N.Y.S.2d at

203.

FOOTNOTES

4 Dibbs also apparently filed an action in this Court

seeking review of the February 8, 2000 DHCR

determination. That complaint was cismissed for

lack of subject matter jurisdiction due to the

availability of Article 78 review in the New York

state courts. See Nov. 2002 Bransten Decision, at 6

end of footnote

Dibbs then commenced «nother Article 78

proceeding seeking damages and an order restoring

him to private possession of the enclosure and

annulling the determination to award him a rent

decrease of $ 12 per month. Notice of Motion, Ex. E,

Apr. 16, 2001 Decision of Justice Eileen Bransten

("Apr. 2001 Bransten Decision") at 1-2. Justice

Bransten concluded that Dibbs ' claims relating to

his harassment complaint had already been

adjudicated, and that those relating to the DHCR's

February 8, 2000 order authorizing removal of

[*347] the gate and granting a rent reduction were

incomplete because Dibbs failed to include a copy of

the order with his petition. Id. at 5; see Compl. P117.

Justice Bransten dismissed the petition without

prejudice to renewal, "so long as [Dibbs] confined his

claims to those surrounding the DHCR's February 8,

2000 order, and any subsequent DHCR orders which

have not been the subject of other suits (such as the

DHCR's September 14, 2000 DHCR order)." Apr.

2001 Bransten Decision, at 6. The Appellate Division

Appendix B 13

affirmed. Compl. P118.

Dibbs next re-filed his Article 78 proceeding,

contesting the DHCR’s approval of removal of the

security gate and the corresponding rent reduction,

the New York City Department of Buildings' ("DOB")

December 6, 2001 issuance of a work permit to

landlord that would allow for “reconfiguration” and

"elimir.ation of a portion of [plaintiff's] apartment,"

and his landlord's conduct. Compl. P127; see id.

PP118, 125-27; Nov. 2002 Bransten Decision, at 7.

Justice Bransten now dismissed all of Dibbs ' claims.

Nov. 2002 Bransten Decision, at 13; see Compl.

P119.

Justice Bransten found no indication that

Dibbs was entitled to exclusive use of the area

between his apartment and where the security gate

had stood, or that there was any governmental

taking of his property by removal of the illegal

gate, and noted that, “to the extent that Dibbs

benefitted from the gate, his rent was reduced to

compensate him for the loss of its use." Nov. 2902

Bransten Decision, at 10-11. Justice Bransten

concluded that "nothing before this Court suggests

that DHCR's determination was arbitrary,

capricious or irrational." [d. at 11. Justice Bransten

further found that Dibbs had failed to establish that

the DHCR's unrelated September 14, 2000 order,

which eliminated a monthly rent reduction because

of restoration of services, was [**15] an arbitrary or

capricious decision, and denied Dibbs ' petition in its

entirety on the merits against the DHCR defendants

involved. Id. Dibbs ' claim based on the DOB's

issuance of a work permit was dismissed because

Dibbs had failed to first appeal to the Board of

Appendix B 14

Standards and Appeals ("BSA") and therefore had

not exhausted his administrative remedies. Id. at 12.

The claim against the landlord defendants was

dismissed because, as non-governmental parties,

they were not subject to Article 78 proceedings in

such a context. Id. at 13.

Dibbs appealed and, in an opinion dated April

18, 2004, the Appellate Division affirmed, holding

that Justice Bransten properly denied Dibbs '

petition for injunctive and declaratory relief as

against the DHCR because the Appellate Division

had already determined that the DHCR's decision to

close Dibbs ' harassment complaint was not an

abuse of discretion, and because the proceeding

challenging the DHCR's determination granting the

Jandlord's application for service and rent reduction

was time-barred, and that Justice Bransten properly

declined to entertain Dibbs ' claims against the DOB

because he had failed to first exhaust his

administrative [**16] remedies. See Dibbs v.

Mulholland, 6 A.D.3d 232, 774 N.Y.S.2d 327 (1st

Dep't 2004); Compl. P120.

Finally, Dibbs filed the current action on

February 7, 2003, which includes the defendants

involved in his previous suits as well as the

aforementioned New York Supreme Court Justices

and Kenneth Podziba, Commissioner of the BSA and

the BSA itself, and which is based on the same

protracted landlord-tenant dispute described herein.

DISCUSSION

In considering a motion to dismiss, a Court must

accept as true all factual allegations set forth in the

Appendix B 15

complaint and draw [*348] all reasonable

inferences in favor of the plaintiff. See Swierkiewicz

v. Sorema N.A., 534 U.S. 506, 508 n.1, 152 L. Ed. 2d

1, 122 S. Ct. y92 (2002); Blue Tree Hotels Inv.

(Canada), Ltd. v. Starwood Hotels & Resorts

Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004)

(citing Gryl v. Shire Pharms. Group PLC, 298 F.3d

136, 140 (2d Cir. 2002)). HN2At the motion to

dismiss stage, the Court's function is "not to weigh

the evidence that might be presented at a trial but

merely to determine whether the complaint itself is

legally sufficient." Goldman v. Belden, 754 F.2d

1059, 1067 (2d Cir. 1985). [**17] HN3A complaint

may only be dismissed for failure to state a claim if

it "appears beyond doubt that the plaintiff can

prove no set of facts which would entitle him or her to

relief." Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir.

2000). HN4In deciding a motion to dismiss the

Court may consider documents referenced in the

complaint, documents that the plaintiff relied on in

bringing suit and that are either in plaintiff's

possession or were known to the plaintiff at the time

of bringing suit, or matters of which judicial notice

may be taken. See Chambers v. Time Warner, Inc.,

282 F.3d 147, 153 (2d Cir. 2002).

The Court has the duty to "read the pleadings

of a pro se plaintiff liberally and interpret them 'to

raise the strongest arguments that they suggest,""

McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.

1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790

(2d Cir. 1994)), while holding them "to less stringent

standards than formal pleadings drafted by

lawyers." Haines v. Kerner, 404 U.S. 519, 520, 30 L.

Ed. 2d 652, 92 S. Ct. 594 (1972) (per curiam). While

Appendix B 16

the Court must construe pro se complaints liberally,

particularly where plaintiff files a pro se complaint

alleging civil rights violations, see Deravin v. Kerik,

335 F.3d 195, 200 (2d Cir. 2003), a pro se plaintiff is

not exempt from complying with the relevant rules of

procedural and substantive law. Traguth v. Zuck, 710

F.2d 90, 95 (2d Cir. 1983). "Courts do 'not accept

conclusory allegations on the legal effect of the events

plaintiff has set out if these allegations do not

reasonably follow from his description of what

happened." First Nationwide Bank v. Gelt Funding

Corp., 27 F.3d 763, 772 (2d Cir. 1994) (quoting

Kadar Corp. v. Milbury, 549 F.2d 230, 233 (1st Cir.

1977) (quoting Wright & Miller, Federal Practice and

Procedure: Civil 8 1357)). Furthermore, the Court

may not exempt pro se plaintiffs from the doctrine of

res judicata. See, e.g., Cieszkowska v. Gray Line New

York, 295 F.3d 204, 205-06 (2d Cir. 2002).

Dibbs ' current complaint asserts causes of

action against seven defendants or groups of

defendants: (1) Jerilyn Perine, Commissioner of the

HPD, Ernest Tornicasa, Deputy Inspector of the HPD,

in his official and individual capacity, 5 "Various

unspecified [**19] Building Inspectors" of the HPD,

and the HPD itself; (2) Lawrence Pinner, the

landlord's architect; (3) Kenneth Podziba,

Commissioner of the BSA, and the BSA itself; (4)

Paul Roldan, John Mulholland, Dennis Ryan, Deputy

Commissioner, Administrator, and Commissioner,

respectively, of the DHCR, in their official and

individual capacities, as well as the DHCR; (5)

Patricia Lancaster, Commissioner of the DOB, and

the DOB; (6) Justices Joan Lobis, Carol Huff, and

Eileen Bransten of the New York Supreme Court, in

Appendix B 17

their official and individual capacities, and (7) Tim

Greenfield-Sanders and Ten Be or Not Ten Be, Inc.,

the landlord defendants.

FOOTNOTES

5 Deputy Inspector Tornicasa is not listed in the

caption_of plaintiff's Complaint, but is mentioned 2s

a defendant therein. See Compl. P17.

end of footnote

Plaintiff's 8B 1983 claims against the HPD

defendants are precluded by the doctrine of res

judicata. HN7"Res judicata assures the finality of

judgments by precluding a party to a lawsuit from

litigating a [*349] claim more than once." El-Bey v.

City of New York, 151 F. Supp. 2d 285, 294 (S.D.N-Y.

2001) (quoting Chase Manhattan Bank, N.A. v.

Celotex Corp., 56 F.3d 343, 345 (2d Cir. 1995)). The

doctrine takes effect when there exists an

adjudication on the merits in a prior law suit; the

prior lawsuit involved the party to be precluded or a

party in privity with that party; and the claims

sought to be precluded were raised, or might

reasonably have been raised in a prior lawsuit. Id. at

294.

In his current Complaint, plaintit¥ claims that

the HPD "sided with the landlord and refused to

respond to my repeated complaints" about the heat

and plumbing conditions in his apartment, Compl.

PP40-43, evaded his complaints about lack of

ventilation and garbage accumulation, id. P84,

"issued the building code violation that removal of

the gate was predicated on," id. P75, and that the

HPD "does not provide a tenant with adequate pre-

deprivation procedures." Id. P139. This Court has

Appendix B 18

already ruled that plaintiff's claims against the

HPD, including 8 1983 claims, based on the same

factual predicate and similar allegations, were

time-barred. See Dibbs, 1999 U.S. Dist. LEXIS 3284,

1999 WL 156359, at *4-5.

Dismissal based on statute of limitations grounds

constitutes a dismissal on the merits. See PRC

Harris, Inc. v. Boeing Co., 700 F.2d 894, 896 (2d Cir.

1983). In fact, in an Article 78 proceeding in State

Supreme Court based on these same facts, Justice

Huff dismissed plaintiff's similar claims against the

HPD, citing this Court's prior decision as having res

judicata effect. See Huff Decision, at 2. Because prior

adjudication on the merits has occurred which

involved plaintiff and the HPD, and in which the

claims now sought to be precluded were raised or, to

the extent any were not, should have been raised

given that such claims arise from the very same

series of transactions that formed the basis of the

previous federal decision, see Pike v. Freeman, 266

F.3d 78, 91 (2d Cir. 2001), plaintiff's claims against

the HPD defendants must be dismissed. 6

FOOTNOTES

6 Plaintiff's attempt to avoid this time-bar by

including the conclusory allegation that the HPD

"acted jointly" with the DHCR, Compl. PP17, 147, in

effect attempting to tie the HPD to the DHCR

activity occurring in 2000 which is described infra,

must be rejected as plaintiff sets forth no facts

suggesting any such involvement by the HPD and

plaintiff's allegations, therefore, "do not reasonably

follow from his description of what happened." First

Nationwide Bank, 27 F.3d at 772 (quoting Kadar

Corp. v. Milbury, 549 F.2d 230, 233 (1st Cir. 1977)

Appendix B 19

(quoting Wright & Miller, Federal Practice and

Procedure: Civil 8 1357)). To the extent plaintiff

utilizes this same strategy to revive claims against

defendant Pinner, Compl. PP8, 22, it is likewise

rejected.

Further, to the extent plaintiff's Complaint

asserts a RICO claim against the HPD, DHCR, and

the state justices based on “the ex parte meeting of

the judges and DHCR and HPD," id. P258, and the

alleged back-dating of an order by Justice Huff, id.

P234, such claim must be dismissed as plaintiff has

utterly failed to allege facts demonstrating HN8the

statutory elements of a civil RICO claim, 18 U.S.C. 8

1962; see Sedima, S.P.R.L. v. Imrex Co., 473 U.S.

479, 496, 87 L. Ed. 2d 346, 105 S. Ct. 3275 (1985). At

minimum, plaintiff has not alleged the existence of

an “enterprise” within the meaning of 18 U.S.C. 8

1961(4), see First Capital Asset Mgmt., Inc. v.

Satinwood, Inc., 385 F.3d 159, 173 (2d Cir. 2004), nor

does plaintiff set forth two or more predicate acts by

the defendants that satisfy the definition of

"racketeering activity." 18 U.S.C. BB 1961(1),

(5).

Nor can plaintiff's Complaint be construed to

sufficiently allege that defendants violated plaintiff's

civil rights by means of a conspiracy HN9under 42

U.S.C. B 1985, Compl. P8, as "[a] complaint alleging

a conspiracy to violate civil rights is held to

heightened pleading standards," Julian v. N-Y.C.

Transit Auth., 857 F. Supp. 242, 252 (E.D.N.Y. 1994),

aff'd, 52 F.3d 312 (2d Cir. 1995), and plaintiff here

has completely failed to allege "specific facts

suggesting that there was a mutual understanding

among the conspirators to take actions

Appendix B 20

directed toward an unconstitutional end," id. at 252

(quoting Duvall v. Sharp, 905 F.2d 1188, 1189 (8th

Cir. 1990) (per curiam)). Such allegation appears to

be no more than an attempt to boot strap those

defendants against whom the statute of limitations

has expired to the more recent activity of the DHCR

and DOB defendants. See discussion infra.

The only actions Dibbs ' Complaint mentions

involving defendant architect Pinner were taken in

1993 and 1994 and involve the opinions expressed by

Pinner in plaintiff's DHCR proceeding. See Compl.

PP22, 66-68, 78-80, 85, 195, 204. Such actions were

the subject of a previous suit by Dibbs against

Pinner in this Court, and were dismissed as barred

by the applicable statute of limitations. See Dibbs,

1999 U.S. Dist. LEXIS 3284, 1999 U.S. 156359,

at *4-5. Accordingly, Dibbs ' claims against Pinner

are also barred by the doctrine of res judicata.

Plaintiff's Complaint must be dismissed

against defendant Kenneth Podziba, Commissioner

of the BSA, and the BSA itself because, even

liberally interpreted, it fails to allege any possible

cause of action against said defendants. The

Complaint is completely silent as to any act or

omission performed by the BSA regarding plaintiff.

See Compl. PP19, 94, 130, 133. The only relevant

reference to the BSA, as previously mentioned,

relates to the 2001 work permit issued by the DOB

to the landlord. See id. PP125-33. Plaintiff had thirty

days to appeal the permit to the BSA and failed to

do so. Id. PP130, 133. Justice Bransten dismissed

plaintiff's claims against the DOB in the case before

Appendix B 21

her based on plaintiff's failure to so appeal. See Nov.

2002 Bransten Decision, at 12. As the Complaint

suggests no involvement by the BSA in the events

that form the basis of this lawsuit, it is dismissed as

against the BSA defendants.

Plaintiff's B 1983 claims against the DHCR

and defendants Roldan, Mulholland, and Ryan must

also be dismissed. First, to the extent plaintiff's

claims against the DHCR defendants are based on

events occurring prior to February 8, 2000, they are

time-barred. HN10New York Civil Practice Law and

Rules ("CPLR") section 214 provides that the statute

of limitations applicable to 8 1983 actions brought in

federal court in New York is three years. CPLR B

214; Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir.

1997). Section 1983 claims accrue when the plaintiff

knows or should know of the injury that is the basis

of the action. Ormiston, 117 F.3d at 71. Plaintiff

commenced the current action on February 7, 2003

and, thus, any alleged injury occurring prior to

February 8, 2000 is barred by the statute of

limitations. Though the vast majority of plaintiff's

Complaint concerns acts occurring [**24] in 1993

and 1994, plaintiff himself acknowledges the

February 8, 2000 time-bar. See Compl. P260.

To the extent, then, that plaintiff's claims

against the DHCR defendants are based on the

DHCR's February 8, 2000 and September 14, 2000

orders, the only allegations involving DHCR not

time-barred, it must nonetheless be dismissed

because plaintiff is essentially asking this Court to

collaterally review the judgments of the New York

State courts, specifically the most recent decision of

Justice Bransten. This Court lacks the subject

Appendix B 22

matter jurisdiction to do so. 7

FOOTNOTES

7 Plaintiff's 8 1983 claims against the DHCR, as

well as against defendants Roldan, Mulholland, and

Ryan to the extent they are being sued in their

official capacities for retrospective relief, must

additionally be dismissed because "neither a State

nor its officials acting in their official capacities are

‘persons' under 6 1983." Will v. Mich. Dep't of State

Police, 491 U.S. 58, 71, 105 L. Ed. 2d 45, 109 S. Ct.

2304 (1989).

It is well established that a federal] [**25}]

district court is one of original, not appellate,

jurisdiction and therefore has no subject matter

jurisdiction to review state court decisions. See Dist.

of Columbia Court of Appeals v. Feldman, 460 U.S.

462. 482, 75 L. Ed. 2d 206, 103 S. Ct. 1303 (1983);

Atl. Coast Line R.R. Co. v. Bhd. of Locomotive Eng'rs,

398 U.S. 281, 287, 26 L. Ed. 2d 234, 90S. Ct. 1739

(1970); Rooker v. Fidelity Trust Co., 263 U.S. 413,

416, 68 L. Ed. 362, 44S. Ct. 149 (1923); see also

Kropelnicki v. Siegel, 290 F.3d 118, 128 (2d Cir.

2002); Moccio v. N.Y.S. Office of Court Admin., 95

F.3d 195, 198-99 (2d Cir. 1996). Additionally,

HN138the Rooker-Feldman doctrine bars not only

claims which would involve direct review of a state

court decision, but also claims which are

"inextricably intertwined" with a state court decision

or which seek relief that, if granted, would modify a

state court decision. See Feldman, 460 U.S. at 482

n.16. The Second Circuit has explained that

inextricably intertwined’ means, at minimum, that

Appendix 8 23

where a federal plaintiff had an opportunity to

litigate a claim in a state proceeding, subsequent

litigation of the claim will be barred under the

Rooker-Feldman doctrine if it would [**26] be

barred under the principles of preclusion." Phifer v.

City of New York, 289 F.3d 49, 56 (2d Cir. 2002)

(quoting Moccio, 95 F.3d at 199-200).

The Rooker-Feldman doctrine "is generally applied

coextensively with principles of res judicata and

collateral estoppel If a suit or claim would be barred

in state court by either, Rooker-Feldman prevents

the federal court from asserting subject matter

jurisdiction." Vargas v. City of New York, 377 F.3d

200, 205 (2d Cir. 2004).

Where a 8 1983 action is brought by an

unsuccessful Article 78 plaintiff, such as Dibbs, only

collateral estoppel will trigger the Rooker-Feldman

bar; New York's res judicata rule "does not apply

because a state court entertaining an Article 78

proceeding does not have the power to award the full

measure of relief available in subsequent section

1983 litigation." Id. Under New York law, collateral

estoppel occurs if "(1) the issue in question was

actually and necessarily decided in a prior

proceeding, and (2) the party against whom the

doctrine is asserted had a full and fair opportunity to

litigate the issue in the first proceeding." Colon v.

Coughlin, 58 F.3d 865, 869 (2d Cir. 1995).

Liberally construing plaintiff's Complaint as

the Court must, the only possible surviving basis for

a B 1983 claim against the DHCR defendants is

whether the DHCR's determinations in the February

8, 2000 and September 14, 2000 orders constitute an

unconstitutional taking. 8 See Compl. PP113-15,

Appendix B 24

240-41. The DHCR's February 8, 2000 order

determined that there was no evidence that a

new type of gate would have been approved by the

HPD, that the Rent Administrator did not err in

granting the decrease in service with a corresponding

decrease in rent because of the HPD violation

determining that the security gate was illegal, and

thatthe Rent-Administrator gave too large of a

rent reduction. See Compl., Ex. 1, Order of DHCR,

dated Feb. 8, 2000. The September 14, 2000 order

affirmed a Rent Administrator's determination that

an unrelated rent reduction could be discontinued

because services had been fully restored. See Nov.

2002 Bransten Decision, at 4; see Compl. P114.

FOOTNOTES

8 Any due process claim Dibbs attempts to make

under the Fourteenth Amendment against the

~ DHCR is time-barred as such claim stems from

events occurring in the 1993-94 time period, see

Compl. PP147, 254 (DHCR unreasonably delayed in

issuing a final order), id. PP144, 148 (DHCR failed to

provide Dibbs a hearing prior to or after the removal

of the security gate), id. PP51-96 (complaining

generally about DHCR's handling of plaintiff's

harassment complaint), and cannot be resurrected

via the issuance of the February 8, 2000 order. In any

event, this Court has already determined that DHCR

did not violate plaintiff's due process rights based on

similar allegations. See Dibbs, 1999 U.S. Dist.

LEXIS 19195, 1999 WL 1201709, at *6-7.

Dibbs ' equa! protection claim against the

DHCR is based on the vague allegations that the

“DHCR took away all my rights" after he filed his

Appendix B 25

harassment complaint in 1993, id. PP201-02, on

DHCR Administrator Mulholland's duty to

"maintain my premises in full and habitable use", id.

P199, and subsequent refusal to do, see id. P252, and

the DHCR's "inaction" and failure "to hold hearings",

id. P253, all of which originate from the DHCR's

handling of Dibbs ' harassment complaint in the

1993-94 time period; thus, such claim is likewise

time-barred.

Additionally, plaintiff's claim that the DHCR

violated his personal security under the Fourth

Amendment is based on its alleged failure to restore

his apartment and remedy the dangerous conditions,

id. P252, which Dibbs brought to the DHCR's

attention in June 1993, id. P51, and on DHCR

inspectors’ visits, see id. PP195-96, during the

handling of the harassment complaint, which took

place in 1993-94; this claim is then also time-barred.

end of footnote

In his Article 78 proceeding before Justice

Bransten, Dibbs had a full and fair opportunity to

litigate this takings question, and in fact did so;

Dibbs argued that the removal of the security gate

caused him to be partially evicted, that the rent

reduction was not an adequate remedy for the loss of

part of his apartment, and that the rent-reduction

order was an unconstitutional regulatory taking of

his property. See Nov. 2002 Bransten Decision, at 7-

8.

Justice Bransten actually and necessarily

decided the question against Dibbs when she

concluded that Dibbs had not shown there was any

governmental taking of his property, and that, to the

Appendix B 26

extent Dibbs benefited from the gate, his rent was

correspondingly reduced as compensation. See id. at

10, 11. Justice Bransten further wrote that there was

no indication that Dibbs was entitled to exclusive

use of the area between his apartment and where the

security gate had stood, and held that "nothing

before this Court suggests that DHCR's

determination was arbitrary, capricious or

irrational." Id. 9 The Appellate Division affirmed.

See Dibbs, 6 A.D.3d at 232, 774 N.Y.S.2d at 327.

FOOTNOTES

9 Justice Bransten also found that the unrelated

September 14, 2000 order merely eliminated a

monthly rent reduction because of restoration of

services, and that Dibbs had not established that

that decision was arbitrary or capricious. Nov.

2002 Bransten Decision, at 11.

end of footnote

This Court cannot possibly consider plaintiff's

takings claim based on the DHCR's determinations

in these orders without reviewing the merits of

Justice Bransten's decision because the two are

"inextricably intertwined." See Feldman, 460 US. at

475. Dibbs ' takings claim can succeed "only to the

extent that the state court wrongly decided the

issues before it’ and is thus barred by Rooker-

Feldman." Vargas, 377 F.3d at 208 (quoting

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25, 95 L. Ed.

2d 1, 107 S. Ct. 1519 (1987}). Therefore, any claims

against the DHCR defendants that are not time-

barred must be dismissed because the Court lacks

subject matter jurisdiction to resolve them. 10

Appendix B 27

FOOTNOTES

10 To the extent plaintiff invokes this Court's

mandamus powers, requesting that the Court "order

the DHCR to 5 ~ovide for prompt and

Constitutionally adequate hearings," Compl. P254,

such request is denied as this Court has already

determined Dibbs has no right to such a hearing in

this context. See Dibbs, 1999 U.S. Dist. LEXIS

19195, 1999 WL 1201709, at *7.

end of footnote

Plaintiff's claims against the DOB defendants

must also be dismissed for failure to state a claim.

Plaintiff's B 1983 claim here appears to stem from

alleged procedural and substantive due process and

equal protection violations based on the procedure

the DOB utilized in issuing a building permit in

December 2001 allowing plaintiff's apartment to be

modified. [*353] See Compl. PP18, 125, 128-29,

131, 134, 136, 211, 212, 217, 219-21, 223, 225-28,

255-56. Causes of action based on due process

violations require "the existence of a federally

protectable property right and the denial of such a

right in the absence of either procedural or

substantive due process." Natale v. Town of

Ridgefield, 170 F.3d 258, 262 (2d Cir. 1999).

"Substantive due process protects against

government action that is arbitrary, conscience-

shocking, or oppressive in a constitutional sense."

Kaluczky v. City of White Plains, 57 F.3d 202, 211

(2d Cir. 1995). To prevail on this claim, plaintiff

must demonstrate that the DOB "so grossly abused

their authority that they deprived him of a

constitutionally protected property interest." Rackley

Appendix B 28

v. City of New York, 186 F. Supp. 2d 466, 479

(S.D.N.Y. 2002). [**31] Gross abuse occurs "only

where the government action challenged is so

‘outrageous’ and 'arbitrary' that it 'shocks

the conscience." Id.

As best the Court can discern, plaintiff's

substantive due process claim is based on his

argument that allowing "major construction" while

plaintiff lives in the apartment "subjects the tenant

to undue and unnecessary hardship and

dangerous conditions." Compl. P219. Assuming

plaintiff's property interest was implicated by tle

DOB's issuance of a permit that allows for the

modification of his rented apartment, and assuming

further that plaintiff is expected to live in the

apartment during the process, such an allegation,

while describing an inconvenience, fails to describe

any actions on the part of the DOB that "shock

the conscience" because of their arbitrariness or

outrageousness. See Rackley, 186 F. Supp. 2d at 479.

Procedural due process "require[s] notice and

an opportunity to be heard prior to the deprivation of

a property interestO." United States v. Premises &

Real Prop. at 4492 S. Livonia Rd., Livonia, N.Y., 889

F.2d 1258, 1263 (2d Cir. 1989). Plaintiff's procedural

due process claim appears to |**32}] be based on

the allegation that that he did not receive notice that

a permit was being approved or an opportunity to

object to it prior to its issuance by the DOB, and

that the DOB did not directly send plaintiff a copy of

the permit or notice on how to appeal it. See Compl.

PP131, 211, 227.

Plaintiff, however, admits in his Complaint

that he received a copy of the permit and the plans in

Appendix B 29

mid-December 2001 from his landlord. See id. P126.

In ner November 19, 2002 decision, Justice Bransten

confirms such receipt, writing that "within a day

after issuance of the work permit, Dibbs was sent a

copy of the plans, which he later received." Nov. 2002

Bransten Decision, at 12. Plaintiff also recognizes

that he had the opportunity to appeal such permit to

the BSA within thirty days of its issuance and

admits he failed to do so. See Compl. PP130, 133.

Had he so appealed, plaintiff would have been

entitled to an Article 78 proceeding in an appropriate

New York state court. Id. PP130, 133. Instead,

plaintiff chose to bring an Article 78 proceeding

without first appealing, and the New York court

subsequently refused judicial review. See Compl.

P133.

"In considering whether [**33] defendants

have failed to afford plaintiffs due process ... the

Court evaluates the entire procedure, including the

adequacy and availability of remedies under state

law." Liotta v. Rent Guidelines Bd. for the City of

New York, 547 F. Supp. 800, 802 (S.D.N.Y. 1982).

Having so reviewed, the Court finds that, in light of

the pre- and post-deprivation remedies available

to plaintiff, which he acknowledges in his Complaint,

and which allow for a quick appeal and subsequent

state court review, plaintiff has failed to state a

procedural {*354] due process claim. See, e.g.,

Iwachiw v. New York State Dep't of Motor Vehicles,

299 F. Supp. 2d 117, 122-23 (E.D.N.Y. 2004) (finding

plaintiff's pre- and post-deprivation remedies, which

included ability to appeal an administrative

determination to the appeals board and then

prosecuting an Article 78 proceeding, were sufficient

Appendix B 30

to defeat procedural due process claim).

The Equal Protection Clause “bars the

government from selective adverse treatment of

individuals compared with other similarly situated

individuals if “such selective treatment was based on

impermissible considerations such as

race, religion, intent to inhibit or pumish the exercise

of constitutional rights, or malicious or bad faith

intent to injure’a person." Bizzarro v. Miranda, 394

F.3d 82, 86 (2d Cir. 2005) (alteration in original)

(quoting LeClair v. Saunders, 627 F.2d 606, 609-10

(2d Cir. 1980)). Additionally, equal protection claims

can succeed "where the plaintiff alleges that she has

been intentionally treated differently from others

similarly situated and that there is no rational basis

for the difference in treatment." Vill. of Willowbrook

v. Olech, 528 U.S. 562, 564, 145 L. Ed. 2d 1060, 120

S. Ct. 1073 (2000).

Plaintiff's equal protection claim liberally

construed appears to be that he stands in a similar

position to that of the landlord and therefore should

have been included in the permit approval process

from the application point forward, instead of merely

having the ability to appeal an issued permit after

the fact. See Comp]. PP223-25. However, plaintiff

fails to allege that there is no rational basis for

differentiating between him, as a tenant, and the

landlord in the permit approval process or that any

such differentiating was intentional, see Vill. of

Willowbrook, 528 U.S. at 565; [**35] State Police for

Automatic Ret. Ass'n v. Difava, 317 F.3d 6, 15 (ist

Cir. 2003), let alone that he was subject to different

treatment based on any of the aforelisted

impermissible

Appendix B 31

considerations. See Bizzarro, 394 F.3d at 86.

in sum, plaintiff's Complaint fails to state a 8

1983 claim against the DOB defendants and

therefore the DOB defendants’ motion to dismiss is

granted.

Finally, plaintiff's claims against Justices

Lobis, Huff, and Bransten of the Supreme Court of

the State of New York, New York County, must be

dismissed under the doctrine of absolute judicial

immunity. HN18"Judicial immunity is an

immunity from suit, not just from ultimate

assessment of damages." Mireles v. Waco, 502 U.S.

9, 11, 116 L. Ed. 2d 9, 112 S. Ct. 286 (1991). The only

prerequisites to judicial immunity are that the judge

be performing a j:dicial act or one that is judicial in

nature and that the judge not act in the clear

absence of all jurisdiction. See id. at 11-12. Here,

Justices Lobis, Huff, and Bransten were clearly

acting within the scope of the authority granted to

them by the New York State Constitution, Article VI

when ruling on Dibbs' previous actions, and

additionally [**36] all actions allegedly taken by

them, as described in plaintiff's Complaint and

supra, were of a judicial nature, meaning

such actions are normally performed by a judge, and

the parties dealt with the Justices in their judicial

capacity. 11 See [*355] Stump v. Sparkman, 435

U.S. 349, 362, 55 L. Ed. 2d 331, 98S. Ct. 1099

(1978). Accordingly, Justices Lobis, Huff, and

Bransten are entitled to absolute immunity, and the

claims against them must be dismissed.

FOOTNOTES

11 To the extent Dibbs requests injunctive relief

Appendix B 32

against the Justices, such claims must also be

dismissed because he has failed to allege the

violation of a declaratory decree or the unavailability

of declaratory relief. See 42 U.S.C. B 1983 HN19("In

any action brought against a judicial officer for an act

or omission taken in such officer's judicial capacity,

injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory relief

was unavailable."); see also Montero v. Travis, 171

F.3d 757, 761 (2d Cir. 1999) (per curiam).

end of footnote

in closing, due to the apparent frivolousness of

the instant action, plaintiff is warned that should he

continue to file actions against the aforementioned

defendants based on the events set forth herein he

may be barred from filing any future actions in this

Court without first obtaining leave of the Court,

pursuant to its powers under 28 U.S.C. 8 1651(a).

See MLE Realty Assocs. v. Handler, 192 F.3d 259,

261 (2d Cir. 1999).

CONCLUSION

For the foregoing reasons, the Court grants

defendants' motions to dismiss the Complaint.

Plaintiff's cross-motion to stay this federal action

pending the outcome of his state appeal is denied as

moot given the April 13, 2004 Appellate Division

decision affirming Justice Bransten. 12 See Dibbs, 6

A.D.3d at 232, 774 N.Y.S.2d at 327. A Pre-Trial

Conference in this action including plaintiff and

the remaining landlord defendants who did not

participate in the current motion shall occur on

Appendix B 33

March 22, 2005 at 3:00 p.m. in Courtroom 705, 40

Centre Street.

FOOTNOTES

12 Plaintiff's cross-motion for an order tolling the

statute of limitations to allow him to amend his

Complaint in response to the Appellate Division

decision is also denied as plaintiff has failed to

articulate any legal basis for such request and, in

any event, this Court lacks subject matter

jurisdiction over any challenge to such decision.

end of footnote

It is SO ORDERED.

Dated: New York, New York

February 14, 2005

John E. Sprizzo

United States District Judge

Appendix B 34

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Thurgood Marshall U.S. Courthouse at Foley Square,

40 Center street, New York, NY 10007 Telephone

212-857-4500

MOTION INFOMATION STATEMENT

Docket Number 05-6870-cv Captiom (use short

title)

Motion for REARGUMENT

DIBBS

Plaintiff-appellant

vs

ROLDAN

Defendant-appellee

Set Forth below precise, complete statement of relief

sought:

COURT ERRED IN THEIR DECISION: SEEK

REVERSAL

MOVING PARTY: Stephen Dibbs, plaintiff

appellant petitionr

OPPOSING PARTY: NYC CORP CNSL, NYS ATTY

GEN

MOVING PARTY: STEPHEN DIBBS, pro se

OPPOSING ATTORNEY: NYC CORP COUNCIL,

Donna Morris Esq for NYC Corporation Council, 100

Church St NYC 212 1233; NYS Attorney General,

120 Broadway, NYC, NY, ;Ben Kaplan, 30 Ave. B,

NYC, NY 10009; Zetlin & DeChiara, 801 First Ave,

NYC. NY

COURT JUDGES: 2D CIR, WINTER CALEBRESI

WALKER

Has consent of opposing counsel been sought, Yes,

Has been obtained, No.

AppendixC 35

Has argument date of appeal been set? No.

Signature of Moving Attorney: Stephen Dibbs

12/11/07

Has service been effected: Yes

ORDER

Before: Hon Ralph K. Winter, Hon John M. Walker,

Jr, Hon Guido Calabresi, Circuit Judges

IT IS HEREBY ORDERED, that Appellant’s motion

for Reconsideration is DENIED.

01/17/08

Date

[court stamp):

UNITED STATES COURT OF APPEALS

FILED

JAN 17 2008

SECOND CIRCUIT

fend of court stamp]

FOR THE COURT

Catherine O’Hagan Wolfe, Clerk

by, Judy Pismanont, Motions Staff Attorney

Appendix C 36

DEPARTMENT OF HOUSING PRESERVATION

AND DEVELOPMENT OFFICE OF RENT AND

HOUSING MAINTENANCE

MANHATTAN 9th Floor, 39 Broadway, N. Y., N.Y.

55 AVENUE B 01-98

NOTICE OF VIOLATION

SANDERS All violations listed below are class B

Tim All violation must be corrected by 4/22/93

151 First Avenue and certified by 5/6/93

New York, N.Y. 10003

Item Order Corrected VIOLATION DESCRIPTION _

125 510 4/2/93 27-2005 AD CODE & M/D

LAW ABATE THE

NUISANCE CONSISTING

OF SECURITY GATE

OBSTRUCTING FIRE

EGRESS ENTRANCE TO 1

STY GROUND APT

Appendix D 37

4 eS.

wv

any

be

5

x

:

At

e9

LX

AN/t

’

AN

<p> 4

\

imate

<r

~~ e

<&

~

‘

es

>

NEW YORK STATE DIVISION OF HOUSING AND

COMMUNITY RENEWAL

OFFICE OF RENT ADMINISTRATION

ENFORCEMENT BUREAU

INSPECTION REPORT

To John Mulholland

enforcement case no. HG 410085-hl

From William Levy

premises: 155 Ave. B N.Y.C. Center storefront Apt.

& related public area

Date and Time of Inspection _ October 27, 1993

Haz Deficiency description remedy Other or Furth-

grad er Information

Security Gate removed L

from apt’s storefront

porch area, security aint

Hazard

io)

4 Water Stained, unpaint- O Check for leak

ed, broken areas of walls from above,

& ceiling in strorefront Plaster &

porch Paint

3 Plywood covering apt. O After restoring

entry door lock &

security gate to

provide security

remove plywood

Appendix F 41

4 Broken uneven store- O make level

front porch concrete

floor

4 Loose insulationon O _ secure steam riser

steam riser in store- or box in riser

front porch

Slight oder ofonions~ - source of odor

and/or garlic noted in could not be

apt. determined

4 Broken open, cracked PP

and blistered walls &

ceiling, apt wide

4 Open, uninsulated O reinsulate

ceiling soffit above

storefront

Various beams suspended

below ceiling from possible

removed hung ceiling

4 Missing glass panein OQ replace missing

front (living room) glazing &

which is now boarded secure front

up area

Appendix F 42

Stall Shower unsecured O secure cement

atop cement block blocks to floor

platform in rear room and stall

shower to

wall &

cement blocks

No load mechanical or

other noise was evident

from basement or adjac-

ent storefront or apts.

Lock on 346 E. 10th st

tenants primary building

entry was in proper order

Inspector, William Levy

10/28/93

Appendix F 43

NEW YORK STATE SUPREME COURT

COUNTY OF NEW YORK

PRESENT: HON. LOBIS, Justice

x

Stephen Dibbs (Rent Stabilized Tenant)

Petitioner,

ORDER TO

SHOW CAUSE

V Index No.

134617/94

John Mulholland, Div. Of Housing &

Community Renewal,

Ernest Tornincasa, N.Y.C. Dept of HPD

Tim Sanders, Landlord,

Lawrence Pinner, architect

Respondents.

Upon reading and filing the application of

Stephen Dibbs sworn to on the 16 day of December,

1994; and upon the exhibits annexed hereto

Let the Respondents attorney show cause at

IAS Part 20, Room 345 of this Court, to be held at

the Courthouse, 60 Center Street, New York, New

York, on the 6th Day of Jan, 1995 at 9:30 o’clock in

the noon or soon as counsel may be heard why a order

should not be made For judicial Review Landlord

and his architect and judicial review of the

determination of the N.Y. State department of

Housing and Community Renewal, and actions and

determinations of the N.Y. City Department of

Housing Preservation And Development in regard to

AppencixG 45

complaint filed by tenant with DHCR asserting

landlord Harassment.

Sufficient cause appearing therefor, let

personal service of a copy of this order, the..and the

papers upon which this order is granted upon the

respondents on or before the 27 day of Dec, 1994 be

deemed good and sufficient.

ENTER

JBL

J.S.C.

[attached petition of Stephen Dibbs:}

1) Upon acquisition of the building I live in,

during 1984, my landlord singled me out from all the

other tenants to pursue a willful and malicious

course of actions intended to force me to vacate my

apartment. These include:

a) exclusion from building wide capital

improvements

b) water turned off for almost two years

c) interruption of electricity and landlord’s efforts

to block reconnection

d) illegally reduced the size of my apartment on

two occasions.

e) Repeatedly make fraudulent and misleading

statements and letters to government authorities,

concerning my tenancy.

f) Withheld general services and services of

building superintendent, and reduce heat.

g) Consistently gave me deceptive, unreasonable

and improper notice whenever repairs were to be

made.

h) Stole personal and business property from my

AppencixG 46

apartment.

1) Boarded over windows and door to my

apartment, blocking light, ventilation and locking me

out.

)) Allows neighboring tenants to create annoying

and dangerous conditions.

k) Caused noise and vibration from mechanical

devices in basement

}) When court or municipality ordered repairs,

landlord accomphshed them in a unacceptable

unworkmanship manner, or they were incomplete, or

he went beyond what was expected to cause damage.

2) I filed a harassment complaint with the

N.Y. State Division of Housing and Community

Renewal (DHCR).

3) Contrary to what the DHCR has said,

they did not investigate my case thoroughly.

4) At the DHCR conference, I was not

provided a full and fair opportunity to present my

case, but I was directed not to speak so the

conference was conducted solely between the DHCR

counsel, Mr. John Mulholland and my landlord.

5) The DHCR did not send me a copy or

inform me of my landlord’s Answer to my complaint.

The landlord’s answer contained fraudulent

statements which I should have been made aware of.

I contend that these fraudulent statements biased

the proceedings against me.

6) I was not made aware of my landlord's

answer to my complaint until I made a Freedom Of

Information Law review of the DHCR file almost a

year later.

7) I am currently living under severely

unhealthy and dangerous conditions, caused by the

AppencixG 47

removal of a security gate that protected and defined

the premises.

a) Homeless people, vagrants and drug users

constantly seek refuge . the area which was once

protected by the gate, and is supposed to be my

apartment.

b) People use this area to urinate and defecate.

c) People attempt to break into my apartment.

8) My landlord justifies removing the

previous gate because he was responding to a N.Y.

City Department of Housing Preservation And

Development (HPD) order to “abate the nuisance of

security gate obstructing fire egress.”

9) Let me point out to the court and all

parties involved, that the HPD violation said “abate

the nuisance”, and not remove the gate. Thus

removal of the entire gate was not required, and if

the landlord was more prudent in his duties, a

passageway of only 36 inches wide would be enough

to fulfill the requirements, and lead to the serious

degradation of the habitability of the premises.

10) The premises were disseized without due

process of law, in violation of my 5 and 14

amendment rights of the United States

Constitution.

11) Furthermore, the landlord went ahead

and boarded over the windows and door, locking me

out, which is in clear violation of law.

12) My landlord stole my personal and

business property which was in the area behind the

gate.

a) the theft of my business property has affected

my ability to make a living.

13) The New York State Dept. Of Housing

AppencixG 48

And Community Renewal (DHCR) counsel Mr. John

Mulholland, and his director, Steven Cohen failed to

find any fault in these matters.

14) Beside withholding my landlord’s Answer

from me, the DHCR proceedings were unfair

because:

a) They denied me information regarding their

procedures

b) They gave me wrong information regarding

procedures

c) DHCR counsel acted improperly

d) DHCR closed my case without negotiation

15) The DHCR ordered the landlord to

reinstall a security gate, but my landlord in his

continued efforts to harass me, wrongfully convinced

the DHCR that it was not possible.

16) My landlord used his architect to give

misleading and intimidating information to the

DHCR.

17) My landlord, withheld important

information needed to approve a gate or security

system.

18) Landlord should be held in contempt.

19) DHCR relied on the opinion of N,.Y. City

Department of Housing Preservation And

Development inspector, Mr. Ernest 'TORINICASA, as

to whether or not a gate could be installed:

a) heis not an architect

b) plans must be approved by the N.Y.C. Dept of

Buildings, and not HPD

c) his opinion was wrong

20) HPD inspector Ernest Tornincasa was

biased against me in this proceeding.

21) HPD inappropriately processed my

AppencixG 49

building complaints.

22) The DHCR proceedings denied a review by

the N.Y. City Board of Standard’s and Appeals.

23) I was denied a variance.

24) My landlord’s notice to me that the

original gate was going to be removed was defective,

thus depriving me of recourse to the courts and

various building departments to block his action.

25) DHCR investigation of my case was

incomplete.

26) The actions and intent of my landlord

were malicious.

27) The handling of my case by DHCR counsel

Mulholland and HPD inspector Tornincasa was

irresponsible.

Signed,

Stephen Dibbs

Rent Stabilized Tenant

AppencixG 50

SUPREME COURT OF THE STATE OF NEW

YORK

COUNTY OF NEW YORK: IAS PART 20

occcccesenascuedeeesonscocuses cccccocesSf

STEPHEN DIBBS,

Petitioner, Index no. 134617/94

Decision and Order

-against-

JOHN MULHOLLAND, et al.,

Respondents.

JOAN B. LOBIS, J.S.C.

Petitioner seeks an order of this court

declaring that the failure of the New York State

Department of Housing And Community renewal

(“DHCR”) to issue a finding of harassment.was an

abuse of discretion. The respondents cross-move to

dismiss this Article 78 proceeding claiming no cause

of action has been stated. For the reasons stated

below, the cross-motions are granted.

The petitioner has named not only the DHCR

but he sued the counsel to the DHCR who

investigated petitioner’s complaint, and investigator

of the New York City Department of Housing

Preservation and Development (“HPD”) who

apparently issued a violation involving the subject

premises at one time, the owner of the premises

where petitioner resides and whom petitioner has

accused of harassing him and and architect involved

AppencixH 51

in the building in some fashion. Petitioner claimed,

inter alia, that respondents have engaged in a course

of conduct to force him to vacate his apartment. The

DHCR investigated petitioner’s complaint. It did not

issue a finding. It did however attempt to implement

a plan to address some of petitioner’s complaints.

The Rent Stabilization Code is quite clear

that an aggravated party may file a petition for

administrative review (“PAR”) against an order

issued by the district rent administrator. After the

agency's determination of the PAR, the aggravated

party has recourse to this court by way of an Article

78 petition to review the agency’s actions. But

without a final order from the DHCR, there is no

basis for this petition. Unlike other proceedings

before the DHCR that result in orders, the

determination of whether to issue a finding of

harassment is left to the discretion of the agency and

not subject of court review. Because the DHCR is

doing a discretionary act and not a mandatory one,

the alternative of mandamus is not available to

compel a finding of harassment.

The Petitioner’s complaint was dismisseu by

the agency without any limitation upon the

petitioner from filing another complaint in the event

circumstances at the building change. The petition is

dismissed and the clerk shall enter judgment

accordingly.

This constitutes the decision and order of the

court.

Dated: Feb. 14, 1995

JBL

J.S.C.

AppencixH 52

Officially Reported as: 232 A.D.2d 346; 648 N.Y.S.2d 921,

1996 N.Y. App. Div. LEXIS 11205:

SUPREME COURT OF NEW YORK, APPELLATE

DIVISION, FIRST DEPARTMENT

In the Matter of Stephen Dibbs,

Appellant,

v.

John Mulholland et al.,

Respondents.

58959

October 31, 1996, Decided

October 31, 1996, ENTERED

JUDGES: Concur--Rosenberger, J. P., Ellerin, Rubin,

Kupferman and Nardelli, JJ.

OPINION

Order, Supreme Court, New York County (Joan

Lobis, J.), entered February 17, 1995, which granted

respondent's cross motions to dismiss this

proceeding brought pursuant to CPLR article 78 to

annul the Division of Housing and Community

Renewal's determination dated June 28, 1994,

closing petitioner's harassment complaint,

unanimously affirmed, without costs.

The motion court properly found the challenged

administrative determination to be nonreviewable at

this time since the agency has not yet determined

petitioner's pending petition for administrative

Appendix! 53

review. In these circumstances, neither review nor

relief pursuant to CPLR article 78 is

available ( Matter of Wyndham Realty Co. v New

York State Div. of Hous. & Community Renewal, 139

Misc 2d 418, 419-420).

Concur--Rosenberger, J. P., Elierin, Rubin,

Kupferman and Nardelli, JJ.

Appendix! 54

STATE OF NEW YORK COURT OF APPEALS

At a session of the Court, held at court of Appeals

Hall in the city of Albany on the twenty-first day of

October 1997

PRESENT, HON. JUDITH S. KAYE, Chief Judge,

presiding,

x

Mo. No. 1233 SSD 78

In the Matter of Stephen Dibbs,

Appellant,

v.

John Mulholland, et al.,

Respondents.

The Appellant having filed notice of appeal in

the above title and due consideration having been

thereupon had, it is

ORDERED, that the appeal be and the same hereby

is dismissed without costs, by the court sua sponte,

upon the ground that no substantial constitutional

question is directly involved.

Stuart M. Cohen

Clerk of the Court

Appendix J 55

UNITED STATE DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

STEPHEN DIBBS,

Plaintiff, MEMORANDUM

AND ORDER

-against-

98 Civ. 2102

ERNEST TORNICASA, Inspector

for New York City Department of

Housing Preservation and

Development ( HPD ).

R. BERRY, Inspector for HPD,

JOHN MULHOLLAND, Admin-

istrator for New York State

Division of Housing and Commun-

ity Renewal,

Tim Sanders, President of Ten Be or

Not Ten Be, Inc., Landlord,

LAWRENCE PINNER, ARCHITECT,

Defendants.

SAND, District Judge,

Plaintiff Stephen Dibbs brings this pro se

action against Defendants Ernest Tornincasa and R.

Berry on the New York City Department ot Housing

Preservation and Development (the “HPD” )

(together, the City Defendants”), John Mulholland of

the New York State Division of Housing and

Community Renewal ( the “DHCR’), architect

Lawrence Pinner, and Plaintiff's landlord, Tim

Sanders. Plaintiff asserts numerous causes of action

Appendix K 56

based on federal constitutional law and New York

State common law arising from modifications

Sanders made to Plaintiff’s apartment, and

Plaintiff's subsequent attempts to obtain legal

redress for injuries resulting from those

modifications. Presently before the court are (1)

Defendant Sanders motion to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6); Defendant

Mulholland’s Motion for Summary Judgment

pursuant to Federal rule of Civil Procedure 56(b);

and (3) Plaintiff's Motion for Summary Judgment;

and (4) Plaintiffs Motion for Reconsideration of our

March 23, 1999 Memorandum and Order. For the

reasons set forth below, the Motions of Defendants

Sanders and Mulholland are granted, and Plaintiff's

Motions are denied.

Background

Except where otherwise noted, the following

facts are taken from Plaintiff's complaint and are

assumed to be true for purposes of this

Memorandum and Order.

Stephen Dibbs is a New York City resident

who lives in a rent stabilized apartment. (see comp

P1) Defendant Sanders purchased the building in

which Plaintiff now resides in 1984. From that time,

Defendant Sanders attempted to evict Plaintiff

illegally, including by interrupting and interfering

with Plaintiffs heat, water, and electricity.

On or about March 31, 1993, while Plaintiff

was in Florida visiting his father, Defendant Sanders

broke into Plaintiffs apartment and demolished

security bars that were the first door to the premises,

as well as a boundary wall. Defendant Sanders also

Aopendix K 57

absconded with Plaintiffs personal belongings, which

to date have not been returned. ( see comp PP 10-12)

Defendant Sanders then placed plywood over the

windows and an inner door to Plaintiff's apartment

such that Plaintiff could not enter without great

difficulty.

Upon returning from Florida and discovering

the damage, Plaintiff field a harassment complaint

and an application for rent reduction with the DHCR.

Approximately three months later, Defendant

Mulholland, a DHCR administrator, conducted a

conference. Defendant Mulholland began the

conference before Plaintiff arrived and directed

Plaintiff nct to speak and not to respond to adverse

witnesses. (see comp P 15.) Defendant SAnders

explained that he removed the security bars outside

Plaintiff's apartment because the HPD had informed

his that the bars violation governing building codes

and issued Defendant Sanders a citation. Near the

conclusion of the conference, Defendant Mulholland

invited all individuals present, other that Plaintiff ,

into a back room where they had a private conference.

FOOTNOTES

2 Plaintiff concedes that his "complaints were

technically deficient" but does not offer further

elaboration. (Comp. P 14.)

On October 13, 1993, the DHCR issued an order

directing Defendant Sanders to submit an architect's

report detailing plans to rebuild the demolished

portions of Plaintiff's premises and to undertake

necessary repairs based on those

plans. Defendant Sanders hired Defendant Pinner to

furnish an architect's report, and Defendant Pinner

Appendix K 58

concluded that the bars previously in place could not

be legally maintained under the New York building

codes because the bars hindered egress in the event

of a fire. (See Comp. P 19; Winikow Aff. June 9, 1998,

Ex's. D & E.) Defendant Pinner informed DHCR of his

conclusions in ex parte communications and, in

response to Plaintiff's inquiries, Defendant Pinner

proved to be rude, evasive, and threatening. (See

Comp. P 19.) During this time, the City Defendants --

Defendant Tornicasa in particular -- hid relevant

information from Plaintiff and attempted to convince

DHCR that it was impossible

to restore Plaintiff's apartment to its original

condition.

In light of Defendant Pinner's report, on

February 9, 1994, the DHCR reversed its October 13

order and instead directed Defendant Sanders to

replace the plywood with safety glass, to use legally

acceptable bars to cover the window, and to restore

the damaged door to operable condition. (See Comp.

P 20; Winikow Aff. June 9, 1998, Ex. F.) Plaintiff

filed a petition for administrative review

("PAR") with DHCR, which was rejected [*6] as an

inappropriate request in harassment proceedings.

(See Comp. PP 23-24.) The DHCR thereafter closed

Plaintiff's harassment case, by an order dated June

28, 1994, (see Comp. P 25), but left Plaintiff's

request for rent reduction still pending so as to

preclude judicial review, (see Comp. P 26).

Plaintiff thereafter filed a second PAR, which

to date has remained unanswered. Plaintiff initiated

an Article 78 proceeding in the New York State

Supreme Court in the nature of mandamus seeking a

determination that the DHCR's failure to find

Appendix K 59

harassment constituted an abuse of discretion. On

February 14, 1995, the court rejected the petition in

light of the absence of any final order from the

DHCR. (See Comp. P 28; Winikow Aff. June 9, 1998,

Ex. H.) On October 31, 1996, the Appellate Division,

First Department, affirmed this decision finding that

"the agency has not yet determined petitioner's

pending petition for

administrative review." (PI's Opp. to Pinner Mot. Ex

3; see also Comp. P 29.) On June 5, 1997, the New

York Court of Appeals denied Plaintiff's Motion for

leave to appeal. (See Winikow Aff. June 9, 1998, Ex.

[)

On April 1, 1996, during the pendency of [*7]

Plaintiff's appeals of the dismissal of his Article 78

action, he filed suit in New York Supreme Court

against Defendant Sanders, Defendant Sander's real

estate company, and

Defendant Pinner. That action is still pending.

Plaintiff filed suit in this Court on March 23,

1998, seeking a declaratory judgment that the acts of

which he has complained are illegal, and for

unspecified money damages, equitable relief, and

court costs. Plaintiff asserted numerous federal

constitutional violations as well as state common

law causes of action and premised jurisdiction on 28

U.S.C. 8 1331 and 42 U.S.C. 8 1983. Any jurisdiction

the Court may have over Plaintiff's state law claims

depends on 28 U.S.C. 8 1367, the statute governing

supplemental jurisdiction.

Defendant Pinner moved to dismiss the

Complaint on June 12, 1998, Defendant Mulholland

on September 17, and the City Defendants on

October 26. Plaintiff filed his Motion for

Appendix K 60

Consolidation on December 8. The Court received the

parties' final submissions on January 13, 1999, and

at that time considered all Motions to be fully

submitted.

LEGAL STANDARD

On a motion to dismiss for failure to state a

claim upon which relief may be granted, see Fed. R.

Civ. P. 12(b)(6), we must "construe in plaintiffs favor

factual allegations in the complaint. . . . Dismissal of

the complaint is

proper only where 'it appears beyond doubt that the

plaintiff can prove no set of facts in support of his

claim which would entitle him to relief." Automated

Salvage Transp., Inc. v. Wheelabrator Envil. Sys.,

Inc., 155 F.3d 59, 67 (2d

Cir. 1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-

46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957) (footnote

omitted)) (citation omitted). Where, as here, Plaintiff

proceeds pro se, the Court must liberally construe

the Complaint and hold it to less stringent pleading

standards. See Boddie v. Schnieder, 105 F.3d 857,

860 (2d Cir. 1997).

DISCUSSION

Plaintiff's Complaint, read broadly, contains

three types of allegations: Category 1: Defendant

Sanders entered Plaintiff's residence without

permission, caused damage, and refused to repair

that damage; Category 2: Defendants —

Sanders, Pinner, Mulholland, Tornicasa, and Berry

prevented the fair processing of Plaintiff's

harassment complaint; Category 3: Defendant

Mulholland and the DHCR have failed to take any

final action on Plaintiff's harassment

complaint.

Appendix K_ 61

Because Defendant Sanders has not filed a

Motion to Dismiss the Compiaint, we do not

presently consider the allegations contained in

Category 1, or those allegations in Category 2 that

apply to him. The remaining Defendants concern

themselves entirely with Category 2, and we believe

that the Category 2 claims asserted against them

must be dismissed. We refuse to dismiss Plaintiff's

Category 3 claims against Defendant Mulholland,

however, because we believe that Plaintiff's

Complaint, read broadly, states a claim on which

relief may be granted.

Plaintiff's Category 2 Claims

Each of the Defendants who submitted motion

papers moves to dismiss Plaintiff's claims as barred

by the applicable statute of limitations.

Congress did not specify a statute of

limitations to govern actions filed under 42 U.S.C. B

1983, and the Court must borrow the relevant

limitations and tolling provisions from New York

law. See Board of Regents v. Tomanio, 446 U.S. 478,

483, 64 L. Ed. 2d 440, 100 S. Ct. 1790 (1980). Under

settled precedent, Plaintiff's 6 1983 claims are

governed by the three-year residual statute of

limitations that New York applies to unspecified

personal injury actions.

See Owens v. Okure, 488 U.S. 235, 249-50, 102 L.

Ed. 2d 594, 109 S. Ct. 573 (1989); Ormiston v.

Nelson, 117 F.3d 69, 71 (2d Cir. 1997); see also

N.Y.C.P.L.R. B 214 (McKinney Supp. 1999)

Although we look to state law for the guiding

limitations provisions, "federal law governs the

determination of the accrual date (that is, the date

the statute of limitations begins to run) for purposes

Appendix K 62

of the statute of limitations in a section 1983

action." Ormiston, 117 F.3d at 71. Federal law

“establishes as the time of accrual that point in time

when the plaintiff knows or has reason to know of the

injury which is the basis of his action." Singleton v.

City of New York, 632 F.2d 185, 121 (2d Cir. 1980)

(quoting Bireline v. Seagondollar, 567 F.2d 260, 263

(4th Cir. 1977)). We must therefore determine when

Plaintiff knew or had reason to know that the

Defendants were endeavoring to stall his'

harassment suit and prevent meaningful repair of

his

residence. We believe that there are two possible

accrual dates.

The first date is July 1993. According to

Plaintiff's Complaint, at the initial DHCR conference

that was held "approximately three months" after

Defendant Sanders [*11] damaged Plaintiff's

residence on or about March 31, 1993,

Defendant Mulholland disallowed Plaintiff from

speaking or responding to witnesses, refused to

consider all of Plaintiff's evidence, and excluded

Plaintiff from the hearing's conclusion, which

Defendant Mulholland conducted, with all other

parties. behind closed doors.

The second date is June 28, 1994. According to

Plaintiff's Complaint, Defendants Pinner, Tornicasa,

and Berry held a series of ex parte communications

with Defendant Mulholland after the initial

conference, in which they attempted to minimize

Plaintiff's request for repairs and to bolster

Defendant Sander's contention that the bars were

legally prohibited. Although Plaintiff was not

immediately made aware of these communications,

Appendix K 63

on February 9, 1994, he was informed that DHCR

had reversed its decision to order the repairs

Plaintiff had requested. Plaintiff believed that the

February 9 decision was unsupported but

Defendant Mulholland refused to grant any

adjournments or to allow Plaintiff to amend his

complaint. In a letter dated June 28, 1994, DHCR

informed Plaintiff that after reviewing his complaint,

it had concluded that "no further Enforcement action

is presently warranted."

The Second Circuit has explained that "the

crucial time for accrual purposes is when the plaintiff

becomes aware that he is suffering from a wrong for

which

damages may be recovered in a civil action."

Singleton, 632 F.2d at 192. Even if Plaintiff was

initially ignorant of the scope of the potential due

process violations that allegedly plagued the DHCR's

consideration of his complaint -- a

dubious proposition in light of the circumstances

surrounding the July 1993 conference -- Plaintiff

received actual notice of the DHCR's adverse

determination via the letter of June 28, 1994. As of

this date, Plaintiff either knew, or should have

known, that potential procedural deficiencies had

infected

the DHCR procedure [er considering his Complaint.

Even using this accrual date, the later of the

two potential ones, Plaintiff's claims are time-

barred. Plaintiff filed the Complaint in this action on

March 23, 1998, well past the three year deadline

that would have lapsed in June 1997. Nor do we see

any reason why the statute of limitations should be

tolled. See N.Y.C.P.L.R. 8 207 (McKinney Supp.

Appendix K 64

1999) (defendant's absence from state); id.

at § 208 (defendant's infancy or insanity); id. at 8

209 (war); id. at 210 (death of claimant or person

liable). HN4New York law does not allow us to toll

where, as may have happened here, a plaintiff delays

in bringing a 8 1983 suit due to his belief that an

independent state action will provide the desired

relief. "If a plaintiff wishes to pursue his claims in

succession, rather than concurrently, the legislature

has required the plaintiff either to obtain a judicial

stay of the time for commencing an action, or to

litigate at risk."

Tomanio, 446 U.S. at 486-87 (analyzing New York

law). Plaintiff's failure to heed this warning is fatal

to his Category 2 claims.

Accordingly, the Category 2 claims asserted

against Defendants Pinner, Mulholland, Tornicasa,

and Berry must be dismissed as barred by the

applicable statute of limitations.

Plaintiff's Category 3 Claims

The New York state courts have stated that the

DHCR has yet to enter a final order with respect to

Plaintiff's 1993 harassment complaint. (See

Winikow Aff. June 9, 1998, Ex's H & I.) Defendant

Mulholland correctly argues that it is not

within this Court's authority to review or modify

these decisions. (See Mulholland's Mem. at 5 (citing

Rooker v. Fidelity Trust Co., 263 U.S. 413, 68 L. Ed.

362, 44S. Ct. 149 (1923), and District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462, 75 L. Ed.

2d 206, 103 S. Ct. 1303 (1983)); see also 28 U.S.C.A.

B 1738 (West 1999) (full faith and credit); RICHARD

Appendix K 65

H. FALLON ET AL., HART AND WECHSLER'S

THE FEDERAL COURTS AND THE FEDERAL

SYSTEM 1500-04 (4th ed. 1996) (explaining the

Rooker/Feldman doctrine)). It is entirely within this

Court's province, however, to evaluate whether the

DHCR complaint-review procedure comports with

federal constitutional requirements. See Feldman,

460 U.S. at 483-84.

In particular, we note that Plaintiff appears

bound in a loop whereby the DHCR will not issue a

final order and New York's courts express an

unwillingness to offer review without one. Putting

aside any seeming propriety of mandamus in such a

case -- directing the DHCR to issue a final order,

regardless of its conten‘s -- our review is not

foreclosed by the New York courts’ conclusion that,

under existing state law, the absence of a final order

precludes judicial review. Insofar as Plaintiff's

languishing complaint may constitute a denial of

federal [*15] due process or equal protection,

HN5this Court possesses the authority to evaluate

whether DHCR's procedures comply with federal

constitutional law. HN6If New York has created a

protected liberty or property interest, see Cleveland

Board of Educ. v. Loudermill, 470 U.S. 532, 538, 84

L. Ed. 2d 494, 105 S. Ct. 1487 (1985) (stating that

property interests are created by state law rather

than the federal constitution), such as the right to be

free from a landlord's harassment, New York must

act within constitutional parameters in providing

and protecting this right, cf. Evitts v. Lucey, 469 U.S.

387,

400-01, 83 L. Ed. 2d 821, 105 S. Ct. 830 (1985) ("In

short, when a State opts to act in a field where its

Appendix K 66

action has significant discretionary elements, it

must nonetheless act in accord with the dictates of

the Constitution -- and, in

particular, in accord with the Due Process Clause."); °

Gittens v. LeFevre, 891 F.2d 38, 40 (2d Cir. 1989)

(finding that New York had created a liberty interest

with respect to certain prison conditions and

therefore finding that the "State

must provide a minimum of due process

commensurate with the government function

involved and the private interest affected"). [*16]

Although we take no position on the merits of this

potential federal constitutional claim, the issue not

having been briefed by either side and the particular

facets of DHCR review not having been presented to

the Court, we believe that it would be premature to

dismiss pro se Plaintiff's Category 3 cleims at this

time insofar as they seek declaratory and injunctive

. rehef. 3

FOOTNOTES

3 "HN7It is well settled .. . that while the Eleventh

Amendment bars claims for damages" against

states and state officials acting in their official

capacities, "prospective injunctive relief against a

state officer sued in his official

capacity is permissible," Graus v. Kaladjian, 2 F.

Supp. 2d 540, 542 (S.D.N.Y. 1998) (citing Ex Parte

Young, 209 U.S. 123, 52 L. Ed. 714, 28S. Ct. 441

(1908); Burgio and Campofelice, Inc. v. NYS Dep't of

Labor, 107 F.3d 1000, 1006 (2d Cir. 1997)) (footnote

omitted), as is an award of money damages in a suit

against a state officials acting in his individual

Appendix K 67

capacity, see Hafer v. Melo, 502 U.S. 21, 27, 116 L.

Ed. 2d 301, 112 S. Ct. 358 (1991). We construe

Plaintiff's é

Category 3 claims for undue delay as being against

Defendant Mulholland in his official capacity

because the real party in interest is the DHCR, see

Kentucky v. Graham, 473 U.S. 159, 165-67, 87 L. Ed.

2d 114, 105 S. Ct. 3099 (1985), which

has delayed in issuing a final order. In essence, it is

the DHCR's conduct as a whole, rather than

Defendant Mulholland's in particular, that gives rise

to Plaintiff's Category 3 cause of action. Accordingly,

money damages are not available to Plaintiff for this

claim.

{*17] For similar reasons, we do not today

resolve the question of the timeliness of Plaintiff's

Category 3 claims, which are subject to the same

three-year statute of limitations that governed the

Category 2 claims. The earliest date from which a

cause of action for excessive agency delay could begin

to run in this case is February 14, 1995, when the

New York Supreme Court issued its opinion denying

Plaintiff's request for mandamus due to the absence

of a final DHCR order. Assuming that Plaintiff

should have been aware, from that date, that the

DHCR was engaging in impermissible delay,

Plaintiff's present claim is time-barred.

Plaintiff's claim may not have accrued until

later, however, especially if one reads the supreme

court's decision as denying relief because the action

was filed too early. One might reasonably pause after

such a declaration to wait for

Appendix K 68

the desired final order, and reach the conclusion that

the delay had risen to the level of a constitutional

violation only some time later. It is also possible

that Plaintiffs claim did not accrue until the

Appellate Division affirmed the lower court's ruling

or the Court of Appeals's denial Plaintiff

leave to appeal. Under any of [*18] these scenarios,

Plaintiff's Category 3 claims would be timely.

In light of the need for further elaboration

regarding all facets of the DHCR-review procedure,

including information regarding when a complainant

should become aware that a final DHCR order is not

forthcoming, we deny Defendant

Mulholland's Motion to dismiss Plaintiffs Category

3 claims without prejudice to renewal of that Motion

at a later date. The information presently before the

Court regarding the DHCR procedures is simply too

sparse to allow dismissal of

the Category 3 claims, on either substantive or

statute of limitations grounds. Accordingly,

Defendant Mulholland's Motion to dismiss the

Category 3 claims is denied insofar as Plaintiff seeks

declaratory or injunctive relief.

Plaintiffs New York State Common Law Claims

It follows from the foregoing that some of

Plaintiff's state common law claims should be

dismissed from this action as well. According to HN8

28 U.S.C. B 1367(a), in any civil action of which the

district courts have original jurisdiction, the district

courts shall have supplemental jurisdiction over all

other claims that are so related to claims in the

action within such original jurisdiction [*19] that

Appendix K 69

they form part of the same case or controversy under

Article III of the United States Constitution.

Pursuant to HN98 1367(c), a district court may

decline to exercise supplemental jurisdiction where

the state law "claim[s] substantially predominate[]

over the claim or claims over which the district court

has original jurisdiction, .. .

the district court has dismissed all claims over which

it has original jurisdiction, or .. . in exceptional

circumstances, there are other compelling reasons for

declining jurisdiction." Id. at B 13867(c)(2)-(4).

HN10We must analyze the propriety of asserting

supplemental jurisdiction as to each claim

independently, rather than for the action in toto. See

Manway Constr. Co. v. Housing Auth., 711 F.2d 501,

504 (2d Cir. 1983) ("Where a party asserts what

really are two sets of distinct claims, there must be

grounds for federal

jurisdiction with respect to each."). 4

FOOTNOTES

4 We do not presently consider the state claims

asserted against Defendant Sanders; thus, all

Category 1 claims remain in this action as do those

Category 2 claims asserted against him. As with all

jurisdictional matters, the Court retains the right to

revisit this issue sue sponte or upon a properly filed

motion. Plaintiff does not appear to articulate any

state law cause of action for undue delay under

Category 3.

|*20] Because we have dismissed all of

Plaintiffs federal claims arising from alleged

procedural abnormalities in the DHCR's processing

of his harassment complaint (Category 2), we believe

it is appropriate to dismiss the related state law

Appendix K 70

claims flowing from those events as well. Under 8

1367(a), we could retain jurisdiction only if the

Category 2 state law claims were so closely related

to federal claims as to be part of the same case or

controversy. Here, we have dismissed all Category 2

claims over which we have original jurisdiction and

the remaining federal causes of action -- Category 1

against Defendant Sanders for destruction of

Plaintiff's premises and Category 3 against

Defendant

Mulholland for undue delay -- are independent

claims arising from wholly separate facts. See

Manway, 711 F.2d at 504-05. Therefore, we lack

jurisdiction over Plaintiff's Category 2 state common

law claims and dismiss them from the

action.

Plaintiff's Motion for Consolidation

Plaintiff's request for consolidation of this suit

with his pending state action must be denied. There

is simply no authority for removing a properly filed

state court action where, as here, the defendants

have not requested [*21] removal. See 28 U.S.C.A. B

1441 (West 1999). The Court is similarly devoid of

authority to grant Plaintiff's alternative request, for

a stay of the state court proceeding. Federal courts

may not enjoin state court proceedings except in

narrowly prescribed circumstances, none of which is

present here. See id. at 8 2283 ("HN11A court of the

United States may not grant an injunction to stay

proceedings in a State court except as expressly

authorized by Act of Congress,

or where necessary in aid of its jurisdiction, or to

protect or effectuate its

Appendix K 71

judgments.").

The result of the interplay of these two rules is

eminently logical and comports well with the notions

of federalism that undergird the relationship

between the

states and the federal government. It would be

anomalous to allow an individual to file suit in state

court, proceed until he becomes fearful that the

result there will be unfavorable, and then allow him

either to move that action elsewhere or to stall it

indefinitely while another tribunal undertakes the

time-consuming task of considering the exact same

claims all over again. Plaintiff's request therefore

lacks legal authority.

CONCLUSION

For the foregoing [*22] reasons, the Motions of

Defendants Pinner, Tornicasa, and Berry are granted

in their entirety. Defendant Mulholland's Motion is

granted except insofar as the Complaint asserts a

claim for undue delay in issuance of a final order by

the DHCR and seeks declaratory or injunctive

relief. In that respect, Defendant Mulholland's

Motion is denied without prejudice to renewal at a

later date. Plaintiff's Motion for Consolidation is

denied. Plaintiff's claims against Defendant Sanders

are not altered by this Memorandum and Order.

The parties are directed to confer and submit a

proposed sc! .cduling order by june 1, 1999. This

proposed order should include a discovery schedule

and a date for submission of the pretrial order. The

parties should also indicate the earliest date by

which they anticipate that the case will be ready for

Appendix K 72

trial.

The Clerk of the Court is informed that this case

remains open.

SO ORDERED.

Dated: New York, NY

March 23, 1999

Leonard B. Sand

U.S.D.J.

Appendix K 73

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

STEPHEN DIBBS,

Plaintiff, MEMORANDUM

-against- AND ORDER

ERNEST TORINICASA, Inspector 98 Civ. 2102

for New York City Department of

Housing Preservation and Devel-

ment ( “HPD” ),

R. BERRY, Inspector for HPD,

JOHN MULHOLLAND, Administrator

For New York State Division of

Housing And Community Renewal (DHCR),

TIM SANDERS, President of TEN BE OR

NOT TEN BE, Inc. Landlord,

LAWRENCE PINNER, Architect,

Defendants.

SAND, District judge,

Plaintiff, Stephen Dibbs brings this pro se

action against Defendants Ernest Tornicasa and R.

Berry of the New york City Department of Housing

Preservation and Development (the “HPD”)

(together, the “City Defendants”), John Mulholland

of the New York State Division Of Housing And

Community Renewal (the DHCR), Architect

Lawrence Pinner, tae Plaintiff's landlord, Tim

Sanders. Plaintiff asserts numerous causes of action

based on federal constitutional law and New york

State common law arising from modification

Sanders made to Plaintiffs apartment, and

AppendixL 74

Plaintiffs subsequent attempts to obtain legal

redress for injuries resulting from those

modifications. Presently before the Court are (1)

Defendant Sanders’ Motion to Dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6); (2)

Defendant Mulholland’s Motion for Summary

Judgment pursuant to Federal Rule of Civil

Procedure 56(b); (3) Plaintiffs cross motion for

summary judgment; and (4) Plaintiff's Motion for

Reconsideration of our March 23, 1999

Memorandum and Order. For the reasons set forth

below, he Motions of Defendants Sanders and

Mulholland are granted, and plaintiff's Motions are

denied.

Background

Stephen Dibbs is a New York City resident

who lives in a rent stabilized apartment. (See Comp.

Para 1.). Defendant sanders purchased the building

in which Plaintiff now resides in 1984. From that

time, Defendant Sanders allegedly attempted to

evict Plaintiff illegally, including by interrupting and

interfering with Plaintiffs heat, water, and

electricity. (see comp. 4. 9)

On or about March 31, 1993, while Plaintiff

was in Florida visiting his father, Defendant Sanders

entered Plaintiff's apartment without consent and

demolished security bars that were the first door to

the premises, as well as a boundary wall. Defendant

Sanders also allegedly absconded with Plaintiff's

personal] belongings, which to date have not been

returned. defendant Sanders then placed plywood

over the windows and the inner door to Plaintiff's

apartment such that Plaintiff could not enter

without great difficulty. (See, comp. 4 10-13.)

AppendixL 75

On June 22, 1993, Plaintiff simultaneously

filed three complaint with the DHCR: (1) a

Harassment Complaint, (2) a Reduced Services

Complaint, and (3) a Lack of Heat and Hot Water

complaint. ( See id 4 14, Mulholland Aff. 422.) In

these three complaints, Plaintiff makes many of the

same allegations against Defendant Sanders as he

makes in the Complaint before this Court.(footnote

footnote 1

Plaintiff concedes that his “complaint were

technically deficient” but does not offer further

elaboration. (comp. { 14.)

end of footnote

In response to Plaintiffs Harassment

Complaint, defendant Mulholland, a DHCR

administrator, conducted a conference on October 6,

1993, which was attended by Plaintiff, Defendant

Sanders, Sanders’ wife, a contractor, and the building

superintendent. (See, Comp. 4 14; Mulholland Aff. 4

28.) Plaintiff alleges that Defendant Mulholland

bevan the conference before Plaintiff arrived and

direct Plaintiff not to speak and not to respond to

adverse wittiness. Defendant Mulholland denies

both of these allegations. (See Mulholland aff. 4 29.)

Defendant Sanders explained that he removed the

security bars outside Plaintiffs apartment because

the HPD had informed him that the bars violated

governing building codes, and had issued Defendant

Sanders a citation. (See Comp.] 16; Mulholland aff.

q 31.) Near the conclusion of the conference,

Defendant Mulholland allegedly invited all

individuals present, other than Plaintiff, into a back

room where they had a private conference. (See

AppendixL 76

Comp.{16.) Defendant Mulholland denies this

allegation. (See Mulholland Aff. ¥ 30.

On October 13, 1993, defendant Mulholland

issued an order direction Defendant Sanders to

submit an architect’s report detailing plans to

rebuild the demolished portions of Plaintiffs

premises and to undertake necessary repairs based

on those plans. (See Comp. § 17; Mulholland aff. §

33.) Defendant Sanders hired Defendant Pinner to

furnish the architect’s report. defendant Pinner

concluded that the bars previously in place could not

be legally maintained under the New York Building

codes because the bars hindered egress in the event

of a fire, and he thus submitted a proposal for the

alternative type of security gate. (See Comp. { 19;

Winikow Aff. June 9, 1998, Ex’s. D & E.) During this

period, the City defendants - Defendant Tornicasa in

particular - allegedly hid relevant information from

Plaintiff and attempted to convince the DHCR that

it was impossible to restore Plaintiff's apartment to

its original condition (See Comp. 44 19-20.)

On February 9, 1994, Defendant Mulholland

directed defendant Sanders to install the

replacement security gate proposed by Defendant

Pinner and endorsed by Defendant Tornicasa. ( See

Comp. § 20; Mulholland Aff. 4 39.) In a letter dated

February 11, 1994, Plaintiff objected to this directive

and asked Defendant Mulholland to notify him of his

right to appeal it. (See Mulholland Aff. Ex. F2.) On

March 4, 1994, Defendant Mulholland advised

Plaintiff by letter that there was no formal appeal

process for such decisions made pursuant to a

harassment complaint. (See Mulholland Aff. | 40.)

Shortly thereafter, however, Plaintiff nevertheless

AppendixL 77

filed a petition for administrative review (“PAR”)

with the DHCR. (See Comp. § 23.) In a letter dated

April 11, 1994, the DHCR’s Director of Enforcement

advised Plaintiff that Defendant Mulholland’s

decision was not appealable and, accordingly,

returned Plaintiff's Par forms. (See Comp. 423;

Mulholland Aff. 442.)

Thereafter Plaintiff repeatedly rebuffed

Defendant Sander’s efforts of comply with Defendant

Mulholland’s February 9, 1994 directive, i.e. he

declined to provide Defendant Sanders access to his

residence for the purpose of making the directed

repairs. (See Mulholland Aff.4 43.) After having

warned Plaintiff several times that his failure to

provide such access would occasion the dismissal of

his Harassment Complaint, defendant Mulholland

informed Plaintiff by letter, on June 27, 1994, that

he was recommending the closing of Plaintiff's

harassment case. (See Mulholland aff. | 43 & Ex.

H3.) On July 25, 1994, Plaintiff attempted to

“appeal” this decision to close his case by filing a

second PAR. The DHCR has not responded to this

PAR. ( See Comp. {| 27.)

Plaintiff further alleges that when the DHCR

formally closed his harassment case on June 28,

1994, the DHCR left his Rent Reduction Complaint

- pending so as to preclude judicial review. (See Comp.

{ 26.) On August 24, 1994, however, the DHCR

granted Plaintiff's request for a rent reduction. ( See

Mulholland Aff. 54 & Ex K3.) Plaintiff had the

right to seek administrative review of this decision,

but declined to do so. ( see Mulholland Aff. ¢] 55-56

& K3, L3.)

Instead, in December 1994, Plaintiff initiated

Appendixl 78

an Article 78 proceeding, in New York State Supreme

Court, in the nature of mandamus seeking a

declaration that the DHCR’s failure to issued a

finding of harassment constituted an abuse of

discretion. (See Comp. 428.) On February 14, 1995,

the court denied Plaintiff's petition on the ground

that “[u)nlike other proceedings before the DHCR

that result in orders, the determination of whether to

issue a finding of harassment is left to the discretion

of the agency and not subject to court review. Because

the DHCR is doing a discretionary act and not a

mandatory one, the alternative of mandamus Is not

available to compel a finding of harassment.” (See

Mulholland Aff. 4 52 & Ex. A4; Comp. § 28. Plaintiff

appealed this decision to the Appellate Division,

and, on October 31, 1996, the Appellate Division,

First Department, affirmed. (See Winikow Aff. June

9, 1998, Ex 1.)

On April 1, 1996, during the pendency of

Plaintiff's appeal to the Court of Appeals, he filed

suit in New York Supreme court against Defendant

Sanders, defendant Sander’s real estate company,

and Defendant Pinner. That Action is apparently

still pending.

Plaintiff filed suit in this Court on March 23,

1998, seeking a declaratory judgment that the acts of

which he has complained are illegal, and for

unspecified money damages, equitable relief, and

court costs. Plaintiff asserted numerous federal

constitutional violations as well as state common

law causes of action and premised jurisdiction 0 28

USC § 1331 and 42 USC § 1983, Any jurisdiction the

Court may have over Plaintiff's state law claims

depends on 28 USC § 1367, the stature governing

AppendixlL 79

supplemental jurisdiction.

Defendant Pinner moved to dismiss the

Complaint on June 12, 1998, Defendant Mulholland

on September 17, and the City Defendants on

October 26. Plaintiff filed a Motion for Consolidation

on December 8. In our Memorandum and Order of

March 23, 1999, the Court granted the Motions of

Defendants Pinner, Tornicasa, and Berry, denied

Plaintiffs Motion, and granted in part and denied in

Part Defendants Mulholland’s Motion.

On May, 21, 1999, defendant Mulholland

moved for Summary Judgment on the surviving

elements of Plaintiff's Complaint. On June 17, 1999,

defendant Sanders moved to dismiss. And on

September 1, 1999, Plaintiff filed his Cross-Motion

for Summary Judgment and his Motion for

Reconsideration of our March 23, 1999

Memorandum and Order. ,

DISCUSSION

1. Defendant Sanders Motion to Dismiss.

On a motion to dismiss for failure to state a

cause of claim upon which relief may be granted, see

FRCP 12(b)(6), we must “construe in Plaintiffs favor

factual) allegation in the complaint... Dismissal of the

complaint is proper only where it appears beyond

doubt that the plaintiff con prove no set of facts in

support of his claim which would entitle him to

relief.” Automated Salvage Transp. Inc. v

Wheelabrator Envtl. Sys. Inc., 155 F.59, 67(2d Cir

1998) (quoting Conley v Gibson, 355 U.S. 41, 45-

46(1957)(footnotes omitted)(citation omitted. Where

as here, Plaintiff proceeds pro se the Court must

liberally construe the Complaint and hold it to a less

stringent pleading standards. See Boddie v

Appendixl 80

Schnieder, 105 F3d 857, 860(2d Cir 1997).

Plaintiff advances three distinct claims

against Defutant Gaudcso. Ascot, he aMoges that

Defendant Sanders - along with all of the other

Defendants- prevented the fair processing of his

harassment complaint. (See Comp.44115-20). Second,

he alleges that Defendant Sanders, on or about

March 31, 1998,(a) illegally broke into his

apartment, (b) carried off-and never returned-his

personal belongings, (c) demolished security bars and

a boundary wall, and (4) boarded over the windows

and an inner door of the apartment, effectively

locking him out of his apartment. (See id 4410-13.)

Third, he alleges that, from 1984 onward, Defendant

Sanders “has tried to evict[Plaintiff] by...interrupting

and interfering with all of his essential and required

services, including heat water, electricity, repairs and

improvements....”"(Id ¥ 9.)

Defendant Sanders argues that, insofar as any

of these claims are intended by Plaintiff to be

Section 1983 claims, they should be dismissed

because they are barred by the applicable statute of

limitauons. (See Kaplan Aff at 2.) As noted in our

previous Memorandum and Order, Section 1983

claims are governed by the three year residual

statute of limitations that New York applies to

unspecified personal injury actions. See Owens v

Okure, 488 US 235, 249-250(1989); Ormiston v

Nelson, 117 F.3d 69, 71(2d cir 1997); see also N.Y.

CPLR § 214(McKinney Supp 1999). The accrual date

(i.e., the date the statute of limitations begins to run

for Section 1983 claims is the “point in time when

the plaintiff knows or has reason to know of the

injury which is the basis of his action.” Singleton v

Appendixl 81

City of New York, 652 F2 185, 191 (2d Cir 1980).

Plaintiff explicitly indicates that his second claim is

intended to be a Section 1983 claim when he alleges

that “the landlord’s illegal self-help entry [was]

unconstitutional.” (Comp 415.) Given the nature of

the first claim, we assume that Plaintiff intends it to

be a Section 1983 claim as well. As the third claim

could be merely a state claim, we will consider it

from both perspectives, i.e., first, as a Section 1983

claim, and then as a state claim.

In our previous Memorandum and Order, we

concluded that the accrual date of the first claim was

June 28, 1994 - the date on which the DHCR

informed Piaintiff, by letter, that it had concluded

that “no further Enforcement action is presently

warranted” as regards Plaintiffs harassment

complaint. Given that Plaintiff filed the present

Complaint on March 23, 1998, we held this claim -

as directed against all of the Defendants except

Defendant Sanders - to be time barred. In light of

this previous finding, we no hold that this claim -

insofar as it is directed at Defendant Sanders - is

likewise time-barred.

Turning to Plaintiff's second claim, given that

it is based on actions allegedly taken by Defendant

Sanders on or about March 31, 1993, it is evident

that this claim is also time-barred.

Unlike Plaintiffs first two claims, this third

claim appears not to be time-barred. Plaintiff

suggests that Defendant Sanders’ interference with

Plaintiff's essential services was ongoing as of the

date the Complaint was filed. Assuming, first, that

Plaintiff intends this claim to ba a Section 1983

claim, it would fail for want of a sufficient allegation

Appendixl 82

that defendant Sanders’ conduct constituted state

action. (footnote 2)

footnote 2

In contrast, in the context of his first claim, Plaintiff

alleges that Defendant Sanders’ “self-help entry” on

March 31, 1993 was the result of his responding to a

violation issued by defendant [HPD]. (Comp 415.)

This allegation of government involvement in

Defendant Sanders’ actions at least has the

potential of satisfying the state action requirement.

Plaintiff makes no such allegation of state

involvement in the context of his third claim.

end of footnote

See, 42 USC § 1983. Assuming on the other

hand, that this is intended to be a state law claim,

we decline to exercise supplemental jurisdiction over

it, as we have already concluded that Plaintiffs

Section 1983 claims against Defendant Sanders -

1.e., those claims over which we would have original

jurisdiction - are time-barred. See 28 USC §1367(c).

In light of the foregoing, we grant Defendant

Sanders’ Motion to Dismiss.

Il. Defendant Mulholland’s Motion for Summary

Judgment.

The Court may grant summary judgment only

when the moving papers and affidavits submitted by

the parties how that there is no genuine issue as to

any material fact and that the moving party is

entitled to judgment as a matter of law. See Fed. R.

Civ. P. 56(c); see also Celotex Corp v Catrett, 477 US

317. 322-23 (1986); Brown v City of Oneonta 106 F3d

1125, 1130 (2d Cir 1997). In considering a motion for

summary judgment, a court “is not to weigh the

AppendixL 83

evidence but is instead required to view the evidence

in the hght most favorable to the party opposing

summary judgment, to draw all reasonable

inferences in favor of that party, and to eschew

credibility assessments.” Weyant v Okst, 101 F3d

645, 854(2d Cir 1996). Summary judgment is a

drastic procedural weapon because “its prophylactic

tunction, when exercised, cuts off a party’s right to

present his case to the jury.” Garza v Marine Transp.

Lines Inc. 861 F2d 23, 26 (2d Cir 1998)(quoting

Donnaelly v Guion, 467 F2d 290, 291(2d Cir 1972).

as noted, in our previous Memorandum and

Order we granted Defendant Mulholland’s Motion to

Dismiss in part and denied it in part. We granted it

in regard to Plaintiff's claim that Defendant

Mulholland - along with other Defendants -

prevented the fair processing of Plaintiffs

harassment complaint. we denied it in regard to

Plaintiffs claim that Defendant Mulholland, action

in his official capacity as a DHCR administrator,

failed to order a formal hearing on this complaint

that would have resulted in a final order subject to

judicial review. Defendant Mulholland now seeks

summary judgment on this latter claim. More

specifically, Defendant Mulholland advanced three

arguments in support of this Motion: (1) Plaintiffs

claim is barred by the applicable statute of

limitations (2) Plaintiff insufficiently alleges a

violation of his constitutional nghts’ and (3) even

assuming that plaintiff sufficiently alleges a

violation of his constitutional rights, the Court

should abstain from considering this claim in

conformity with the doctrine of abstention

established by the Supreme Court in Burford v Sum

AppendixL 84

Oil Co, 319 US 315 (1943). We begin with the

Statute of Limitations argument.

A. Statute of Limitations

Plaintiff alleges that his constitutional rights

were violated by Defendant Mulholiand's decision

not to recommend a formal hearing n his harassment

complaint that would have resulted in a final order

subject to judicial review. Defendant Mulholland

argues that Plaintiff must have been aware of the

injury no later than February 14, 1995: the on which

Justice Lobis issued her decision confirming the

DHCR’s position that Defendant Mulholland's

decision not to recommend a formal hearing on

Plaintiffs harassment complaint was not an order

and thus not subject to appeal. As this event,

Defendant Mulholland argues, took place more that

three years prior to the date on which Plaintiff filed

his complaint, Plaintiffs claim against Defendant

Mulholland is time-barred.

We disagree with this reasoning. Upon

learning of Justice Lobis’ decision, Plaintiff could

have reasonable believed that it was incorrect, and

that the Appellate Division would correct the error.

Hence, given that the Appellate Division did not

affirm justice Lobis’ determination until October 31,

1996 - 1.e., less that three years prior to the March

23, 1998 filing date of Plaintiffs Complaint - we hold

that Plaintiffs claim against Defendant Mulholland

is not time-barred.

B. Violation of constitutional rights

To state a valid Section 1983 claim, a plaintiff

must sufficiently allege a violation of “rights,

privileges, or immunities secured by the Constitution

and {federal] laws...."42 USC § 1983. Plaintiff

AppendixL 85

alleges that his due process rights under the Fifth

and fourteenth Amendments were violated by the

DHCR’s decision not to commence a formal hearing

on his harassment complaint that would have

resulted in a final order subject to judicial review.

More specifically, Plaintiff appears to allege that the

DHCR’s regulation affording tenants the

opportunity to lodge harassment complaints against

their landlords conferred upon him a property

interest in a formal hearing on his harassment

complaint that would have resulted in a final order

subject to judicial review. (See Comp. § 3; Pl’s Cross-

Motion 45.)

To sufficiently allege this claim, Plaintiff must

point to a state statute or custom that creates an

entitlement to this alleged property interest. See

Board of Regents v Roth, 408 US 564, 577

(1972)(holding that for a person to have a sufficient

property interest in something to be entitled to

constitutional protection, he must “have more than

an abstract need or desire for it’ He must have more

that a unilateral expectation of it. He must, instead,

have a legitimate claim of entitlement to it.”)

Plaintiff suggest that this alleged entitlement is

created by the sections of New York City Rent

Stabilization Law (“RSL”), N.Y. Uncon. Laws §§ 26-

501 to 26-520 (West 1999) and the DHCR’s Rental

Stabilization Code (“RSC”) N>Y> Rent Stab.

§§2520.1 to 2530.1(McKinney Supp 1999), based

thereon pertaining to harassment complaints. RSL §

26-516(c)(2) provides in relevant part that “{1]f an

owner is found by the DHCR commissioner...to have

harassed a tenant to obtain a vacancy of his or her

housing accommodation, the commissioner may

AppendixL 86

impose by administrative order after hearing a civil

penalty for any such violation... Such order shall be

deemed a final determination for the purposes of

judicial review.” (Emphasis added.) RSL §26-516(h)

provides in relevant part that “the DHCR may, by

regulation, provide for administrative review of all

orders and determination issued by it” RSC

§2526(2)(a) provides that if an owner is found by the

DHCR ... to have harassed a tenant to obtain a

vacancy of a housing accommodation, the DHCR may

impose by administrative order after holding a

hearing [various fines]. Such order shall be deemed a

final determination for the purposes of judicial

review... RSC §2527,5 entitled Preliminary action by

the DHCR,” provides in relevant part that “at any

stage of a proceeding [instituted by a tenant

complaint or application] the DHCR may; (a) reject

the application or complaint if it is insufficient or

defective; (b) make investigations of the facts,

conduct inspection, hold conferences, and require the

filing of reports, evidence, affidavits, etc, or grant or

order a hearing... Similarly, RSC 2527.6 provides in

relevant part that the DHCR on such terms and

conditions as it may determine may, (a) dismiss the

application or complaint if it fails to substantially

comply with the provisions of the RSL or the RSC, or

grant or deny the application in whole or in part...”

It is evident form these provisions that eh New

York State Legislature intended to confer a great

deal of discretion on the DHCR in regard to the

processing of harassment complaints. Although RSC

§ 2527.5(h) confers on DHCR administrators the

authority ot order a formal hearing on a tenant’s

harassment complaint - neither this provision nor

AppendixLl 87

any other mandates the ordering of such a hearing.

This conferral of broad discretion proves fatal to

Plaintiffs claim agatnst Defendant Mulholland. It is

well established that where such discretion has been

conferred, no entitiement has been created. See

Billager Pond, Inc. v Town of Darian, 56 F3d 375,

378(2d Cir 1995), cert denied, 493 US 893 (1989)(“A

clear entitlement, and, in turn, a constitutionally

protected property interest, exists only when “the

discretion of the issuing agency is so narrowly

circumscribed that approval of a proper application

is virtually assured.”). Hence, Plaintiff wold have a

property interest in a formal hearing on his

harassment complaint resulting in a final order

subject to judicial review only if - contrary to fact -

the discretion conferred by the Legislature on the

DHCR were so narrowly circumscribed that the

ordering of such a forma! hearing were virtually

assured.

In short, the above-quoted provisions do not

confer on harassment complaints the right to a

formal hearing on their complaints resulting in a

final order subject to judicial review.[foot note 3]

footnote 3

It does not follow from this conclusion that the

State provided no forum to adjudicate Plaintiff's

claims. (Comp 4 5.) As noted. on April 1, 1996,

Plaintiff filed suit in New york Supreme Court

against Defendant Sanders, Defendant Sanders’ real

estate company, and Defendant Pinner. Furthermore,

insofar as Plaintiff is alleging a partial or complete

eviction, (see Comp 911,13), the DHCR’s Rent and

Eviction Regulations provide for “civil action by

tenant for unlawful eviction or for surrender of

AppendixL 88

possession as a result of harassment.” NYC Rent {

Evict. Law § 2206.9(McKinney Supp 1999). Having

originally elected to file a harassment complaint

with the DHCR - rather that to bring suit in New

York State Supreme court - Plaintiff constructively

relinquished direct control over his claim. Cf

Crimmins v Handler & Co., 671 N.Y.S.2d 469(1st

Dept 1998)(holding that “where a claim has been

filed by the tenant of a rent stabilized housing unit

with DHCR, the question of rent overcharge or

enforcement of the resulting order are matter wholly

within the province of the administrative agency” - in

contrast to “rent overcharge claims advanced by

tenants...who... commence an action in a court of

competent jurisdiction”)

end of footnote

Hence, Defendant Mulholland’s decision to

close the inquiry into Plaintiff's harassment

complaint without ordering a formal hearing thereon

did not violate Plaintiff's due process rights.

[footnote 4]

footnote 4

Having found that Defendant Mulholland is

entitled to judgment as a matter of law on the issue

of whether Plaintiff has sufficiently alleged a

violation of his constitutional rights, we need not

reach Defendant Mulholland’s Burford abstention

argument.

end of footnote

Iii. Plaintiffs Motion for Reconsideration

Plaintiff styles his submission in opposition to

Defendant Mulholland’s Motion for Summary

Judgment a “Cross-Motion for Reconsideration and

Summary Judgment in Plaintiffs Favor.” Although

AppendixL 89

the Federal Rules of Civil Procedure do not recognize

a “motion for reconsideration” in haec verba, courts

generally treat a motion so denominated either as a

motion to alter or amend judgment, under FRCP

59(e), or as a motion for relief from judgment or

order, under FRCP 60. Under which rule the motion

falls depends upon the time at which the motion is

filed. If the motion is filed within ten days of

rendition of judgment, it is treated as a motion to

alter or amend; whereas, if it is filed after that time,

it is treated as a motion for relief from judgment. See

11 Wright, Miller & Kane, Fed Prac & Proc § 2817, at

184 & note 16(1995 & Supp 1999)(citing cases). As

Plaintiffs Cross-Motion was not filed until

September 1, 1999 - thaiis, more than ten days after

our Memorandum and Order of March, 23, 1999 - we

treat his Motion for Reconsideration as a notion for

relief from judgment or order under FRCP 60.

Plaintiffs Motion for Reconsideration appears

to be concerned exclusively with the statute of

limitations holding of our previous Memorandum

and Order. Specifically, Plaintiff disputes our

labeling of his “action only as a civil rights action

with a three year statute of limitations.” (PI’s Cross-

Motion § 1). Plaintiff argues that various of his state

common law claims are subject to statutes of

limitations longer than three years. Specifically,

Plaintiff argues that his claim that he was illegally

evicted from a portion of his apartment is governed

by the “ten year statute of limitations for bringing

action [sic] to recover real property or it’s [sic]

possession, (Id. ](citing NY CPLR§213(a))). Third, he

argues that his claim that Defendant Pinner

“infected the proceedings[on his harassment

AppendixL 90

complaint} with fraud” is governed by a six year

statute of limitations.(see id 42.)

These statute of limitations arguments in

support of reconsideration do not appear to fall into

any of the categories of reasons for reconsideration

set out in FRCP 60. Mindful of Plaintiffs pro se

status, however, we consider these nevertheless.

These argument are misguided because they

fail to take into account the fact that Plaintiff's

Section 1983 claims are properly before this Court

only because they are pendant to Plaintiff's Section

1983 claims. See 28 USC § 1367. In our previous

Memorandum and Order, we dismissed Plaintiff's

Section 1983 claims that Defendants Pinner,

Mulholland, Tornicasa, and Berry prevented the fair

processing of Plaintiffs harassment complaint on the

ground that it was barred by the applicable three-

year statute of limitations. In light of this dismissal,

we declined to exercise supplemental jurisdiction

over those of his state claims closely related to this

“prevention of fair processing” claim. As Plaintiffs

fraud claim against Defendant Pinner clearly falls

into this category, his argument in support of a sex-

year statute of limitations for this claim fails.

As for his argument in support of a six-year

statute of limitations for his claims seeking

equitable and injunctive relief, Plaintiff requested

equitable relief against Defendant SAnders and

Pinner in his Complaint. (See Comp at 5.) As his

request for equitable relief against defendant Pinner

appears to be based on h’3 claim that Pinner

prevented the fair processing of his harassment

complaint - i.e., the very claim we dismissed in our

previous Memorandum and Order - this part of his

AppendixL 91

argument of a sex-year statute of limitations fails.

(footnote 5)

footnote 5

We need not consider the parallel claim for

equitable relief against Defendant Sanders in the

context of Plaintiff's Motion for Reconsideration, as

we did not consider any of Plaintiff's claims against

Sander in our previous Order and Memorandum.

end of footnote

Conclusion

In light of the foregoing, the court grants both

Defendant SAnders’ Motion to Dismiss and

Defendant Mulholland’s Motion for Summary

Judgment, and denies both Plaintiffs Cross-Motion

for Summary Judgment and Motion for

Reconsideration. The Complaint is therefore

dismissed in its entirety and the clerk shall close the

case. '

SO ORDERED

Dated: New York, New York

December 14, 1999

Leonard B. Sand

U.S.D.

AppendixlL 92

State of New York

Division Of Housing And Community Renewal

Office of Rent Administration

Gertz Plaza

92-31 Union Hall Street

Jamaica, New York. 11433

IN THE MATTER OF THE ADMINISTRATIVE

APPEALS OF

TEN BE OR NOT TEN BE Inc. &

STEPHEN DIBBS

PETITIONERS

ORDER AND OPINION GRANTING PETITION

UNDER DOCKET NO. NF410075RO AND

DENYING PETITION UNDER DOCKET NO.

NG410013RT FOR ADMINISTRATIVE REVIEW.

On various dates, the above-named owner and tenant

filed petitions for administrative review (PARs)

against an order issued on June 2, 1999 by the Rent

Administrator, concerning the housing

accommodations known as 155 Avenue B, AKA 246

East 10th Street, New York, New York, ground floor

apartment, wherein the Rent Administrator granted

the owners application for a decrease in a required

service.

The owner of the subject premises initiated this

proceeding on May 27, 1994, by filing an application

requesting the Division’s permission to remove s

security gate across a storefront of the subject

premises which provides access to the store which is

Appendix WM 93

now an area used as an apartment. The owner's

application claims that the owner is required to

remove the security gate, as a matter of law, since

the New York City Department of Housing,

Preservation and Development (HPD) cited the

owner for a violation, as the security gate obstructed

the fire egress to this street level apartment. The

application further claims that the Division’s

Enforcement Unit, in the proceeding HG-419985-HL,

directed the owner to apply to the Division for

permission to eliminate the security gate service.

The Rent Administrator, in the order Docket No.

IE4100080D, granted the owner permission to

eliminate the security gate service and decrease the

rent on the subject apartment in the amount of $27

as follows: $10.00 for the loss of storage area, $2.00

for the removal of gate, $10.00 for the loss of private

space, and $5.00 for the accumulation of debris and

garbage.

The owner in it’s PAR claims, in substance, that the

loss of private space and the loss of storage space

involves the same area between the prior gate to the

apartment storefront, therefore, a $10.00 decrease

for the loss of this space should not be assessed

twice; and that the $5.00 decrease for the

accumulation of garbage and debris is not warranted.

The tenant in his PAR, claims, in substance and in

pertinent part, that the $27.00 rent reduction don

not compensate the tenant for discontinuance of his

use of the storefront area and for the reduction in

security; that removal of the gate allows trespassers

AppendixM 94

to frequent and leave trash in the area; that the

security fence could have been replaced with a gate

door; that the owner could have created another

access to the apartment; and that the owner is

harassing the tenant.

The owner answered the tenant’s PAR, stating in

substance, that the subject proceeding is a result of

compliance with a HPD violation which required the

removal of the gate; that the tenant filed a

harassment and rent reduction case subsequent to

the gate removal; that the owner attempted to notify

the tenant of the pending gate removal by regular

and certified mail; that the tenant kept items used

in his locksmith business in the area between the

gate and the entrance to the storefront; and that the

tenant refused the owner access to make necessary

repairs.

After careful consideration of the entire record, the

Commissioner finds that the petition under Docket

No. NF4100175RO shouid be granted and petition

under Docket No. NG410013RT should be denied.

Sections 2522.4 (d) and (e), of the Rent Stabilization

Code (Code) requires the landlord to maintain

required services included in the maxim rent of the

rent stabilized apartments unless and until the

owner files an application with DHCR to decrease or

modify said required services and an order

permitting such decrease or modification has been

issued.

In the owner’s modification/decrease in services

Appendix VM 95

application, the owner requested that a security gate

be removed as a required service on the grounds that

service was eliminated due to the application of law.

A review of the record indicates that a locking

security gate was in place across the open area from

the sidewalk line to the storefront wall of the subject

building in which the tenant-petitioner inhabits the

ground floor storefront as a residence. It is

undisputed by the parties that the security gate was

a HPD violation because it obstructed the fire egress

from the tenant’s apartment.

The owner’s application included a letter from the

Enforcement Unit dated February 9, 1994 that set

forth the disposition of the tenant’s harassment

complaint ( Enforcement Case No. HG-410085-HL)

against the owner. Said disposition among other

things required the owner to file an application,

pursuant to section 2522.4(d) of the Rent

Stabilization Code, for a reduction in the legal

regulated rent based on the elimination of the

security gate service.

Section 2522.4 (d)(2) of the Rent Stabilization Code

allows an owner to file a application to decrease

required services for a reduction of the legal

regulated rent on the grounds that such decrease is

required for the operation of the building in

accordance with the specific requirements of law.

Section 2522.4(d) also states that a service decrease

pursuant to paragraph (2) may take place prior to

such approval.

Appendix M 96

As for the claim in the tenant’s PAR that another

form of gate with a door should be installed to

replace the prior illegal security gate, the

Commissioner notes that the evidence in the record

belov: including the letters from the harassment

proceeding does not support the contention that the

installation of a new type of gate with a door would

result in HPD approval.

In this instant case, the Rent Administrator granted

the owner’s application to eliminate the gate service

on the basis that the HPD violation required its

abatement. The Commissioner notes that in a letter

from the Enforcement Division dated January 24,

1994, the tenant was informed by courtesy copy that

his suggested installation of stationary bars and

security gate door was reviewed and rejected as

unacceptable by HPD. The Enforcement Unit’s

determination, set forth in the letter dated February

9, 1994, rejected said option based upon the HPD’s

assessment. The Enforcement Unit did, however,

require the owner to remove the plywood from the

subject apartrnent window and outer door; repair the

window glass with a safety glass and install

stationary exterior security bars over the window; to

restore the outer door to properly operating condition;

and to filed the subject application for a decrease in

rent based upon the elimination of security gate

service.

‘“herefore, that under the circumstances of this case

and due to the HPD violation determining that the

security gate was illegal, the Commissioner finds

that the Rent Administrator did not err in granting

Appendix M 97

the decrease in service with the commensurate

reduction in rent.

As for the owner’s PAR, the Commissioner notes that

the Rent Administrator reduced the tenant’s rent by

$10.00 for the loss of storage space and by $10.00 for

the loss of personal space for the semi-open area that

was between the gate and the shorefront entrance to

the tenant’s apartment. The commissioner notes

that both parties do not dispute that the tenant has

access and use of the area. Howver, the

commissioner notes that however the area was used

by the tenant the Rent Administrator should have

limited the rent decrease to the amount of $10.00 for

the loss of the i: cidenta! use of this area due to the

removal of the gate.

As for the decrease of re» t for the trash and debris

accumulation in this area, the Commissioner finds

that said accuiaulation has only a specious

connection to a security gate service. The owner has

the responsibility to keep the ground of the subject

premises clean and secure for all tenants. The

Commissioner, therefore, finds that the Rent

Administrator was incorrect to decrease the tenant’s

rent by $5.00 for the accumulation of trash and

debris.

Therefore, in accordance with the Rent Stabilization

Law and Code, it is

ORDERED, that the petition under Docket No

NF410075RO is granted and the petition under

Docket NG410013RT is denied; and that the Rent

Appendix M98

Admi~.strator’s order is modified to revoke the

$10.00 rent decrease for storage use and to revoke

the $5.00 rent decrease for trash and debris

accumulation, leaving total decrease in rent of $12

for the elimination of security gate service and the

appurtenant area.

ISSUED: FEB 08 2000.

PAUL A. ROLDAN

Deputy Commissioner

Appendix M 99

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY O NEW YORK: JAS PART 32

STEPHEN DIBBS,

Pet: <ioner, Index no. 124062/99

JOHN MULHOLLAND, administrator

for New York State Division of Housing

And community Renewal, (DHCR),

ERNEST TORNINCASA, Deputy Chief

Inspector for New York City Department

Of Housing Preservation and Development,

TEN BE OR NOT TEN BE (landlord),

TIM SANDERS (landlord),

I AWRENCE PINNER, Gandlord’s architect)

Respondents.

CAROL E. HUFF, J.: Sutek

In this Article 78 proceeding, pro se petitioner

seeks relief in connection with the allegedly wrongful

deprivation of part of his living space resulting from

the removal of a security gate. Respondents Ernest

Torinincasa, by New York City Department of

Housing Preservation and Development (“HPD”),

John Mulholland, by New York State Division Of

Housing and Community Renewal(“DHCR’”) and

Lawrence Pinner cross-move to dismiss the petition.

The relief requested by petitioner is

scattershot and largely duplicative of relief sought by

him in other actions. In March 1998, petitioner

commenced an action in the United States District

Court fer the Southern District of New York, against

most of the same parties based on the same factual

background. Dibbs v Tornincasa, Index No 98 Civ

2102. the complaint in that action was dismissed by

decision dated March 23 and December 14, 1999.

Appendix N 100

Also in 1998, petition filed an action against the non-

governmental respondents in supreme Court based

upon the same factual background. Dibbs v Ten Be or

Note Ten Be, Inc., Index No 105918/96. That action

has been temporarily stayed.

The petition is denied as to Ten Be or Not Ten

Be, Inc., and Lawrence Pinner. These respondents are

non-governmental parties who are plainly not subject

to Article 78 proceedings in this context. Sée CPLR

7802.

The petition is also denied as to Tornincasa

and DHPD. While is is difficult to discern from the

petition what cause of action is being asserted,

claims based upon the same factual background

were, in any event, dismissed as time-barred by the

District Court in it’s March 23, 1999 decision.

Finally, the petition is denied as to

Mulholland and DHCR. To the extent that

petitioner’s claims were not dismissed by the

District Court in it’s March and December 1999

decisions, the claims were the subject of a pending

petition for administrative review(“PAR”) before the

DHCR. The PAR was decided on February 8; 2000,

subsequent to the filing of this proceedings,

rendering moot that remaining portion of the

petition.

Accordingly, the petition is denied and the

proceeding is dismissed. Petitioner is given leave to

however, to file a new petition with respect to the

February 8, 2000 DHCR determination.

This constitutes the decision and judgment of

the Court.

Dated: Apr 06, 2000 Carol E. Huff

Appendix N 101

FILED

APR 28 2000

COUNTY CLERK’S OFFICE

NEW YORK

Appendix N 102

SUPREME CUURT UP? THE SIATER UF? WH ICNA

COUNTY O NEW YORK: IAS PART 32___

STEPHEN DIBBS,

Petitioner, Index no. 124062/99

JOHN MULHOLLAND, administrator

for New York State Division of Housing

And community Renewal, (DHCR),

ERNEST TORNINCASA, Deputy Chief

Inspector for New York City Department

Of Housing Preservation and Development,

TEN BE OR NOT TEN BE (landlord),

TIM SANDERS (landlord),

LAWRENCE PINNER,(andlord’s architect)

Respondents.

CAROL E. HUFF, J::

Petitioner pro se moves to amend his petition

and to be granted leave to respond to allegedly new

material in respondent’s reply papers. This motion

was served however almost two weeks iollowing the

denial of the petition in this Court’s decision dated

April 6, 2000, and more than a month following the

filing of respondent’s reply. Accordingly, the motion is

denied.

In moving to amend, petitioner seeks to

challenge DHCR’s new determination only. Since

petitioner filed this motion within the sixty-day

limitations period for an Article 78 proceeding,

petitioner is given leave to file a new petition, based

upon the February 8, 2000 DHCR determination,

within thirty days following service of notice of entry

of this decision.

This constitutes the decision and judgment of

this court.

Appendix O 103

Dated Jui 11, 20W0.

HUFF

Appendix O 104

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

US Distinct Court

STEPHEN DIBBS ~ FILED

PLAINTIFF, APR 14, 2000

S.D.N.Y

-against-

ERNEST TORNINCASA, Deputy

ORDER

Chief Inspector for the New York

City Department of Housing 00 Civ. 2734

Preservation and Development(HPD),

R. Berry, Inspector for HPD, JOHN

MULHOLLAND, Administrator for

New York State Division Of Housing

and Community Renewal, TIM

GREENFIELD-SANDERS, landlord,

LAWRENCE PINNER, architect,

Defendants.

SAND, District Judge,

Plaintiff appears to bring the present action in

response to a February 8, 2000 final order of the New

York state Division of Housing and Community

Renewal (“DHCR’), allowing his a $12 per month

rent reduction. Compl. 44 23. 24. In view of the fact

that the DHCR’s order instructs Plaintiff that his

right to appeal the order lies in the New York

Supreme Court, (through the bringing of an Article

78 proceeding), see id, Ex 2, and the absence of any

basis for the assertion of federal jurisdiction at this

time, the Complaint is dismissed for lack of subject

matter jurisdiction.

Appendix P 105

SO ORDERED

Dated: New York, New York Leonard Sand

April 14, 2000 U.S.D.J.

Appendix P 106

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

STEPHEN DIBBS

Petitioner, Index No 118708/00

-against-

JOHN MULHOLLAND, NEW

YORK STATE DIVISION OF

HOUSING AND COMMUNITY

RENEWAL,

Respondents.

PRESENT; EILEEN BRANSTEN,J.

Motion sequence nos. 1 and 2 are consolidated

for disposition.

In this amended Article 78 petition (motion

seq. no. 1), petitioner Stephen Dibbs, a tenant in a

rent stabilized apartment who is appearing pro se

(“petition”), seeks an order 10 “restor[ing] me to

private possession of the sixty square feet of my

apartment that the landlord caused a partial

eviction” 2) awarding petitioner compensatory and

punitive damages against his landlord and the

landlord's architect for their alleged harassment of

the petition; 3) awarding damages against

respondent New York State Division Of Housing and

Community Renewal (the “DHCR”), for its alleged

resp[onsibility “for the damages the landlord has

caused me”; 40 to the extent petitioner raises issues

outside of the court jurisdiction, transferring this

action to the Appellate Division or the Court of

Claims; 5) awarding petitioner injunctive relief so

AppendixQ 107

that petitioner “may be restored to the status quo”

6) awarding petitioner compensatory, punitive and

triple damages (presumably against his landlord) for

his landlord’s entry to petitioner’s apartment,

allegedly without petitioner’s consent;7) awarding

petitioner damages for the landlord’s alleged willful

failure to repair petitioner’s apartment; 8) awarding

petitioner compensatory and punitive damages for

the DHCR;s alleged “official misconduct” and 9)

annulling the DHCR;s determination to award

petitioner a $12 per month rent reduction based

upon his reduction of services complaint.

In motion sequence no 2, petitioner moves to

“supplement” his petition, for discovery and a jury

trial, and for a stay of the Article 78 proceedings

pending resolution of his appeal to the Second

Circuit of a prior pending action between these and

other parties.

In he petition petitioner recites a tortured

history of disputes between him and his landlord

dating back to 1984. Petitioner claims that his

landlord has harassed his and has partially evicted

him from part of his apartment, and that various city

and state agencies, including respondent DHCR,

have compounded his plight with an incomplete,

shabby and prejudicial investigation” into his

complaints. See Petition.

In June 1993, petitioner filed a harassment

complaint and a reduction of services complaint with

the DHCR. In addition, over the years Petitioner has

apparently also filed at least two other complaints

with the DHCR. In 1994 the DHCR closed the

harassment complaint. the petitioner then filed a

petition for administrative review objecting to the

AppendixQ 108

closure of his harassment complaint. Petitioner also

commenced an Article 78 proceeding to challenge the

DHCR;s closure of the harassment complaint (the

“first Article 78 Proceedings”).

By order dated February 14, 1995, Justice

Lobis denied and dismissed the First Article 78

Proceeding, noting that the DHCR’s decision to close

the harassment complaint was discretionary, and

that the petitioner’s petition for administrative

review had not yet been resolved. See Dibbs v

Mulholland, Sup. Ct. N.Y. Co., Index No. 124617/94.

The Appellate Division, First Department affirmed

dismissal of the First Article 78 proceeding. See

Dibbs v Mulholland, 232 A.D.2d 346 (1st Dept 1996).

Next, in 1998, petitioner commenced an action

in the United States District court for the Southern

District of New York (the “First Federal Action”). In

he First Federal Action, the petitioner made many of

the same allegations as are set forth in the petition

in this Article 78 proceeding. see Dibbs Aff., Exh. 2.

By memoranda and order dated March 23 and

December, Judge Sand dismissed the First Federal

Action. Petitioner has appealed Judge Sand’s

decision to the Second Circuit. See Dibbs Aff., Exh. 3.

In 1999, petitioner brought a second Article 78

proceeding in this court against petitioner’s landlord,

certain other private individuals with whom

petitioner had contact, the DHCR, and various

government official ( the “Second Article 78

Proceeding”). In the Second Article 78 proceeding,

petition repeated the allegations set forth in the

Federal Action, the First Article 78 and this Article

78 proceedings.

By decision and order dated April 6, 2000,

AppendixQ 109

Justice Huff dismissed the Second Article 78

Proceedings against the non-governmental entities,

because their are not subject to Article 78 relief.

Justice Huff then denied the petition as to the DHCR

and the various government official, finding that

petitioner’s claims had_already been dismissed as

time-barred in the First Federal Action, and in

addition, were subject to a petition for

administrative review before the DHCR.

However, Justice Huff gave petitioner leave to

file a new Article 78 proceeding with respect to the

DHCR’s February 8, 2000 decision on the petitioner’s

petition for administrative review of one of his

earlier DHCR complaints. see Dibbs v Mulholland,

Index No 124062/99. Petitioner has appealed Justice

Huff's April 6, 2000 decision to the Appellate

Division first department. See dibbs Aff., Exh 4.

In April 2000, petitioner commenced a second

action in the United States District Court for the

Southern District of New York, Challenging he

DHCR’s February 8, 2000 decision on his petition for

administrative review. See Dibbs v Tornicasa,

Docket No 00 Civ 2734 (the “second federal action”).

By order dated April 14, 2000, Judge SAnd

dismissed the Second Federal Action for lack of

subject matter jurisdiction.

As stated above, in this Article 78 proceeding,

petitioner recites the same claims, starting from

1984, as hs recited in the first and second Article 78

Petitions and in the First and Second Federal

Actions. Compare, e.g., Petition and complaint in the

Federal Action, Dibbs Aff., Exh. 2. Petitioner also

alludes to the DHCR’s February 8, 2000 order, but

petitioner does not include a copy of the DHCR;s

AppendixQ 110

February 8, 2000 order with the Article petition.

In the motion, petitioner seeks a stay of this

Article 78 petition to allow the Second Circuit to

resolve petitioners appeal from Judge Sands

dismissal of the Second Federal Action for lack of

federal subject matter jurisdiction. Petitioner also

seeks to add a claim concerning a second DHCR

order, dated September 14, 2000. In the September

14, 2000 order, tue DHCR denied ; etitioner’s

petition for administrative review of the February 4,

2000 order of the Rent Administrator, in which the

Rent Administrator granted petitioner's landlord’s

application for rent restoration. Finally, petitioner

seeks discovery and a jury trial on the wide myriad of

claims pled in this Article 78 vroceeding.

As Justice Huff held, tne only permissible

basis for this article 78 proceedings is the February

8, 2000 DHCR order. All of petitioner’s allegations

and claims have been raised to other courts in other

suits. However, petitioner did not include a cop of the

February 8, 2000 order, so it is impossible for this

court to determine whether the DHCR’s order “was

made in violation of lawful procedure, was affected

by an error of law or was arbitrary and capricious or

an abuse of discretion” (CPLR 7803(3); see also,

Scherbyn v Wayne finger Lakes Board, 77 NY2d 753,

758 (1991).

Accordingly, this petition is dismissed without

prejudice to renewal, so long as petitioner confines

his claims to those surrounding the DHCR’s

February 8, 2000 order, and any subsequent DHCR

orders which have not been the subject of other suits

(such as the DHCR’s September 14, 2000 order).

In light of the dismissal of this Article 78

AppendixQ 111

proceeding, ; etitioner’s motion for a stay and other

relief is denied as moot.

In accordance with the foregoing, is

ORDERED that petitioner's motion for a stay

and other relief is denied; ard is is further

ORDERED that ADJUDGES that the petition

is denied and the Article 78 proceedings is dismissed

without prejudice.

This constitutes the decision, order and

judgment of the Court.

Dated: New York, New York

April 16, 2001 ENTER

Hon. Eileen Bransten

FILED

MAY 15, 2001

COUNTY CLERK OFFICE

NEW YORK

AppendixQ 112

TEN BE OR NOT TEN BE, INC.

151 First Avenue, #155

New York, NY 10003

(212) 533-1211

DECEMBER 7,2001

Mr. Stephen Dibbs

P.O. Box 2148

New York, NY 10009

Dear Mr. Dibbs

You will be pleased to know that we obtained

the attached permit to convert your space to a legal

apartment, as you have requested in your court

documents in the last year.

As you can see on the attached plan, the work

will entail adding a kitchen, replacing the plate

glass with operable windows, replacing the shower

with a bathtub, adding a bathroom sink and two

radiators and moving some walls and doors. You will

end up with more space after the conversion is

complete.

In addition, you will be pleased to see that we

have obtained permission to erect a low fence with a

swing gate at the Avenue B entrance to your new

apartment.

Our workmen will be starting this conversion

on January 2, 2002. Please be there to let them in

the first thing in the morning, or leave a key with

Reino, the super.

We look forward to getting this work done and

to putting all the years of litigation and

unpleasantness behind us.

Appendix R 113

Wishing you the best for the holidays.

Sincerely,

Karin Greenfield Sanders

Vice President

Appendix RR 114

THE CITY OF NEW YORK

WORK PERMIT

DEPARTMENT OF BUILDINGS

PERMIT NO. 1029899446-AL

ISSUED 12/06/01 —EXPIRES 06/11/02

LOCATION MANHATTAN 155 AVENUE B

APPROVED 11/27/01

WORK ALT 1 - Convert existing commercial at first

floor to residential unit. Interior

ZONING R7-2 SPECIAL DISTRICT N/A

USE RESID. BLDG OLD CODE

NO OF DWELLINGS 00017 STORIES 5

TOTAL FLOOR AREA 000000010

LANDMARK NO

[illegable name] COMMISSIONER OF BUILDINGS

fillegable name] BOROUGH SUPERINTENDENT

EMERGENCY TELEPHONE 212 227-7000

NIGHTS AND WEEKENDS 212 312-8298

AppendixR 115

Appendix R 116

SOE ae

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Appendix R 119

Appendix R 120

292 A.D.2D 164; 738 N.Y.S.2D 203; 2002 N.Y. APP.

DIV. LEXIS 2276

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION, FIRST DEPARTMENT

STEPHEN DIBBS,

Appellant-Respondent

Vv

JOHN MULHOLLND, administrator

for New York State Division of Housing

and Community Renewal (DHCR),

Ernest Tornincasa, New York City

Department of Housing Preservation

and Development (“HPD”), et al.

Respondents.

OPINION:

Judgments, Supreme court, New York County

(Carol Huff, J.), entered April 28 and July 28, 2000,

which, inter alia, denied petitioner tenant’s

application pursuant to CPLR article 78 challenging

respondent State Division of Housing and

Community Renewal’s processing of and

determination to close tenant’s harassment

complaint against respondent landlord, with leave to

file a new petition challenging DHCR;s

determination dated February 8, 2000 granting the

landlord’s application to eliminate a required

service, namely, a security gate, with a reduction of

rent, unanimously affirmed, without costs.

Appendix T 121

DHCR’s determination to close the tenant’s

harassment complaint was not an abuse of its

discretion (CPLR 7803(3); see, Dibbs v Tornicasa,

1999 WL 1201709,*6-7, 1999 US Dist Lexis 19195,

*19-21(SDNY, Dec. 14, 1999), there being ample

justification therefor in the tenant’s refusal to permit

the landlord access to the premises and to otherwise

“cooperate with the plan DHCR had formulated to

remedy the safety and habitability problems largely

created by the legally required removal of the

unlawful security gate. DHCR’s determination of

February 8, 200, granting the landlord’s application

for a service and rent reduction is not before this

court, since petitioner, although twice granted leave

to do so, failed to commence a proceeding properly

challenging that determination, which in any event

would be now be time-barred.

March 5, 2002

ENTER Mazzarelli,J.P., Ellerin, Lerner

MARCH 5, 2002 Rubin, Marlow, Jd.

Appendix T 122

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK; PART SIX

In the Matter of the application of

STEPHEN DIBBS,

Petitioner,

-against-

JOHN MULHOLLAND, administrator for New York

State Division of Housing and Community Renewal,

Paul Roldan, Deputy Commissioner of New York

State Division of Housing And Community Renewal,

SATTISH BABBAR, Acting Commissioner of New

York City Department of Buildings, TIM

BREENFIELD SANDERS, and TEN BE OR NOT

TEN BE, INC.

Respondents.

PRESENT: EILEEN BRANSTEN,J.

In this “Combined Article 78” proceeding-the

most recent of a multitude of unsuccessful actions

and proceedings-petitioner Stephen Dibbs challenges

the actions and determination of respondents John

Mulholland, Administrator for New York State

Division Of Housing and Community Renewal, Paul

Roldan, Deputy Commissioner of New York State

Division Of Housig And Community Renewal

(collectively the “DHCR Respondents”, Satish

Babbar, Acting Commissioner of New York City

Appendix U 123

Department of Buildings, Tim Greenfield Sanders

and Ten Be or Not Ten Be, Inc. Dibbs seeks

declaratory and injunctive relief. (foot note, 1)

Footnote 1: Pursuant to the Court’s April 16, 2001

Decision and Judgment, to the extent that Dibbs

seeks review of DHCR’s determination, this court

will limit its analysis to whether the February 8,

2000 and September 14, 2000 administrative

decisions.

End of Footnote.

The respondents cross-move to dismiss the

proceedings.

BACKGROUND

In 1978, Dibbs rented commercial storefront

property in New York City that was to be used as his

apartment. He is a rent-stabilized tenant. In 1984

the building was purchased by respondent landlord

Ten Be of Not Ten Be, Inc. (“Ten Be”) whose

president is respondent Timothy Greenfield-Sanders

(collectively the “Landlord Respondents’).

In March 1993, Ten Be received a violation

notice from the New York City Department of

Housing, Preservation and Development (“HPD”) for

an illegal security gate that fronted Dibbs’

apartment. HPD allegedly required that the gate be

removed by April 22, 1993. Ten Be purportedly tried

to contact Dibbs, and after no success-while Dibbs

was in Florida visiting his father—removed the gate

that served as the first door to the premises and

boundary wall.

Appendix U 124

DHCR Involvement

In June 1993, Dibbs filed three complaints

with DHCR: a harassment complaint, a reduced

services complaint, and a lack of heat and hot wate:

complaint.

Thereafter, Ten Be commenced a DHCR

proceeding, requesting permission to remove the

security gate across the storefront property that

Dibbs used as an apartment with a concomitant rent

reduction. Ten Be alleged that removal was required

because the HPD had cited the gate as a housing

code violation because it obstructed fire egress to the

street level apartment.

In a June 2, 1999 order the Rent

Administrator granted Ten Be permission to

eliminate the gate (since the owner could not restore

it without violation HPD rules) and ordered a $27

monthly rent reduction. See, Feb 8, 2000 DHCR

Decision. The Administrator concluded that the

“owner is granted permission to eliminate the service

of providing [a] security gate.” See, Verified Petition,

Ex 14.

Through cross-petitions for administrative review

(PARs), Ten Be challenged the $27 monthly

reduction as did Dibbs: Ten Be arguing $27 monthly

was too much and Dibbs arguing that the action was

imvroper and that a reduction of $27 a month was

too little.

Dibbs also commenced an Article 78

Proceeding challenging the allegedly wrongful

deprivation of part of his living space as a result of

removal of the security gate.

Subsequently, on February 8, 2000, DHCR

decided the PAR’s. DHCR determined that:

Appendix U 125

There was no evidence that a new type of gate

would have been approved by HPD;

“due to the HPD violation determining that the

security gate was illegal *** the Rent Administrator

did not err in granting the decrease in service with a

commensurate : eduction in rent;”

the Rent Administrator gave too much of a rent

reduction and the rent should only have been reduced

by $12 a month.

Additionally, on September 14, 2000, DHCR

affirmed a Rent Administrator’s determination that

an unrelated rent reduction could be discontinued

because services had been bully restored.

Dibbs’ Lawsuits

In 1994 Dibbs commenced an Article 78

proceeding in Supreme Court, New York County

(lindex Number 134617/94), seeking a declaration

that DHCR’s treatment of his harassment complaint

constituted an abuse of discretion. Because the

determination of whether to issue a finding of

harassment was discretionary, the petition was

denied. See, February 14, 1995 Decision and Order of

Justice Joan B. Lobis. The dismissal was affirmed

by the Appellate Division and leave was denied by

the Court of Appeals. See, Dibbs v Mulholland, 232

A.D.2d 346 (1st Dept 1996, lv. Denied 90 N.Y.2d 801

(1997), lv. Dismissed, 90 N.Y.2d 1007 (1997).

In March 1998, Dibbs commenced an action

against many of the defendants named in this

proceeding in the United States District Court for

the Southern District of New York. Among other

things, Dibbs challenged DHCR;s determination

with respect to his harassment claims and asserted

Appendix U 126

Constitutional violations. See, Dibbs v. Tornincasa,

Index No. 98 Civ. 2102. Dibbs’ complaint was

dismissed.

Dibbs also commenced an action against, among

others, respondents Ten Be and Tim Greenfield

Sander. That action (Index Number 105918/96) was

dismissed without prejudice by Decision and Order

dated March 27, 2002 on he grounds that Dibbs had

failed to oppose the defendant’s motions to dismiss.

See, March 27,m 2002 Decision and Order issued by

Justice Marilyn Shafer.

Dibbs next commenced another Article 78 proceeding

in Supreme Court, New York County (Index Number

124062/1999), this time alleging wrongful ,

deprivation of his living space as a result of removal

of the security gate. The petition was denied as to

Ten Be and Sanders as those respondents were “non-

governmental parties who are plainly not subject to

Article 78 proceedings in this context.” April 6, 2000

Decision and. Judgment. The remainder of the

petition was denied as well because the claims had

been the subject of pending PAR;s that had not been

decided until February 8, 2000 — after the petition

had been filed. Accordingly, Justice Carol E. Huff

dismissed the proceeding and granted leave to file a

new petition regarding the February 8, 2000 DHCR

determination. ID. In a subsequent decision, Justice

Huff further clarified that since Dibbs had filed a

motion to amend his proceeding to include review of

the February 8,2000 DHCR determination “within

the sixty-day limitations period for an Article 78

proceeding, [he was] given leave to file a new petition,

based upon the February 8, 2000 DHCR

determination, within thirty days following service of

Appendix U 127

notice of entry of this decision.” July 11, 2000

Decision and Judgment of Justice Carol E. Huff.

Dibbs appealed the two decisions of Justice

Huff. On March 5, 2002, the Appellate Division, First

Department affirmed Justice Huff's determination.

In its decision, the Appellate Division explained that:

“DHCR determination of February 8, 2000 granting

the landlord’s application for a service and rent

reduction is not before this court, since petition,

although twice granted leave to do so, failed to

commence a proceeding properly challenging hat

determination, which, in any event would now be

time barred.” See Dibbs v Mulholland, 292 A.D.2d

164, 164 (1st Dep’t 2002).

In the interim, however, Dibbs had already

commenced another Article 78 proceeding (Index

Number 118708/00), which was assigned to this

court. (footnote 1)

Footnote: Dibbs had also commenced an action in the

United States District Court, seeking review of the

February 8, 2000 DHCR determination. Because

Dibbs had Article 78 review available in New York

State courts, his complaint was dismissed for lack of

subject matter jurisdict

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