Caldwell v. Pesce

83 F. Supp. 3d 472, 2015 U.S. Dist. LEXIS 14401, 2015 WL 430382
CourtDistrict Court, E.D. New York
DecidedFebruary 3, 2015
DocketNo. 14-CV-4196 (JFB)(SIL)
StatusPublished
Cited by26 cases

This text of 83 F. Supp. 3d 472 (Caldwell v. Pesce) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Caldwell v. Pesce, 83 F. Supp. 3d 472, 2015 U.S. Dist. LEXIS 14401, 2015 WL 430382 (E.D.N.Y. 2015).

Opinion

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

Before the Court are plaintiffs Ken and Lisa Caldwell’s (“plaintiffs” or “the Caldwells”) applications to proceed infor-ma pauperis filed together with their complaint against the following defendants: Justice Michael L. Pesce, P.J.; Justice Michelle Weston; Justice Martin M. Solomon; Chief Clerk Paul Kenny; Senior Partner Russell Polirer, Esq.; Senior Partner Kenneth Novikoff, Esq.; Senior Partner Chery[l] F. Korman, Esq.; Gut-man, Mintz, Baker & Sonnenfeldt, P.C.; and Rivkin Radler, LLP, attorney at law.1

For the reasons set forth below, the plaintiffs’ applications to proceed in forma pauperis are granted. However, the complaint is dismissed, sua sponte, with prejudice.

I. Background

A. Prior Federal Complaint

Plaintiffs Ken and Lisa Caldwell, who are proceeding pro se, are no strangers to this Court. Plaintiffs’ first complaint in this Court was filed on October 7, 2008 against defendants Gutman, Mintz, Baker, & Sonnenfeldt P.C. (“Gutman”); Russell [477]*477Polirer; Fairfield Presidential Associates (“FPA”); Lightstone Group; Fairfield Presidential Management Corporation (“FPMC”); David Lichtenstein; and Debbie Ketay, (collectively, “defendants”), alleging numerous federal and state claims, including: (1) violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq.; (2) violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq.; (3) violations of New York General Business Law § 349; (4) malicious prosecution; (5) abuse of process; (6) wrongful use of a civil proceeding; (7) violations of Federal Rule of Civil Procedure 11; (8) violations of the federal criminal false statements statute, 18 U.S.C. § 1001; and (9) federal criminal mail fraud, apparently under an “honest services” theory, pursuant to 18 U.S.C. §§ 1341 and 1346.

Defendants moved for judgment on the pleadings and this Court referred defendants’ motion to Magistrate Judge Wall for a Report and Recommendation (“R & R”). Magistrate Judge Wall recommended that defendants be granted judgment on the pleadings and. also recommended, sua sponte, that plaintiffs’ motion to amend their complaint be denied. Plaintiffs objected to the R & R and, by Memorandum and Order dated March 30, 2010, the Court adopted the well-reasoned and thorough R & R in its entirety with the exception that the Court afforded plaintiffs leave to replead their Fair Credit Reporting Act claim. Plaintiffs filed an amended complaint, and defendants moved to dismiss it. Plaintiffs then sought leave to file a Second Amended Complaint, which the Court granted. The Court denied defendants’ motion to dismiss as moot without prejudice to renewal upon the filing of the Second Amended Complaint by the plaintiffs. Plaintiffs filed a Second Amended Complaint and defendants moved to dismiss it. By Memorandum and Order dated March 28, 2012, the Court granted defendants’ motion in its entirety as to the federal claims asserted by plaintiffs. The Court also sua sponte dismissed with prejudice the state law claims set forth in the Second Amended Complaint. See 08-CV-4207, Mem. & Order, dated March 28, 2012, (Bianco, J.).

B. The Present Complaint

On July 7, 2014, plaintiffs filed the instant complaint in this Court against Justice Michael L. Pesce, P.J.; Justice Michelle Weston; Justice Martin M. Solomon; Chief Clerk Paul Kenny;2 Senior Partner Russell Polirer, Esq.; Senior Partner Kenneth Novikoff, Esq.; Senior Partner Chery[l] F. Korman, Esq.; Gut-man, Mintz, Baker & Sonnenfeldt, P.C. (“Gutman”); and Rivkin Radler, LLP, attorney at law.3 Like the earlier complaint, the present complaint is difficult to comprehend as it is voluminous and replete with not only factual allegations but references to and quotations from various statutes, codes of conduct, and case law. However, as the Court can best discern, the gravamen of the claims [478]*478here arise from the same underlying proceedings complained of in plaintiffs’ first action in this court. More specifically, plaintiffs again seek review in this court of the action against them in the Civil Court of the City of New York.

According to the complaint, the instant matter arises from a “frivolous” lawsuit filed by Gutman on behalf of its client, Fairfield Presidential Associates (“FPA”), in the Civil Court of the City of New York, Kings County, against the Caldwells, Index No. CV-2671006 (“Kings I”). (Compl. at ¶ III. (1).) The Caldwells were tenants in a residential building that is allegedly owned by Fairfield Towers Condominium. (Compl. at ¶¶ III. (12, 8-9).) Plaintiffs complain that Gutman, on behalf of FPA, sent the Caldwells collection letters in January 2006 concerning the nonpayment of rent. On February 27, 2006, Gutman filed a lawsuit in New York City Civil Court on behalf of FPA against the Caldwells for breach of lease and damages. (Compl. at ¶¶ III. (1-4).)

A civil trial was held and the Honorable Alice Fisher Rubin issued a decision on June 4, 2007, stating that the plaintiff, FPA, had “established a prima facie case based on credible evidence” and that the defendants did not establish a prima facie case on their counterclaim. (Compl. at ¶ 111.(21), Ex. K.) Finding that the matter originated in the housing court where the issues of nonpayment, holdover, and abatement were adjudicated, Judge Rubin ruled that a judgment of possession was granted to FPA in the holdover action, use and occupancy were established, and FPA’s claim for money damages was established. (Id.) In addition, Judge Rubin found that the Caldwells’ counterclaim seeking further abatement could not be sustained since they had had their day in court in the underlying housing court proceeding. (Id.)

Plaintiffs assert in the instant complaint that these rulings are “unconstitutional, inequitable [and] directly violate and disenfranchise [plaintiffs] of their constitutional rights to due process, a fair civil proceeding and clearly demonstrate[ ] a lack of standing by the defendants and their client FPA.” (Compl. at ¶ III. (21).) Plaintiffs claim that Judge Rubin “erred and ruled with bias and prejudice.... ” (Id. at ¶ III. (24).)

The Caldwells appealed the Civil Court ruling to the Appellate Term, which affirmed the order, on February 11, 2009. (Id. at ¶¶ III. (30-31, 33), Ex. M.) In between the entry of judgment in the Civil Court and the denial of the Caldwell’s appeal, they filed their first action in this court, which was described above.

Plaintiffs also seek review of another state court proceeding in the Civil Court, Ken Caldwell v. Gutman, Mintz, Baker Sonnenfeldt, P.C., Index No. CV-090357-07 (“Kings II”).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
83 F. Supp. 3d 472, 2015 U.S. Dist. LEXIS 14401, 2015 WL 430382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caldwell-v-pesce-nyed-2015.