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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK For Online Publication Only
-------------------------------------------------------------X
YAN PING XU,
Plaintiff,
MEMORANDUM & ORDER
-against- 19-CV-1362 (JMA) (ARL)
SUFFOLK COUNTY, SUFFOLK COUNTY
SHERIFF OFFICE, ERROL D. TOULON, JR., FILED
CHRISTOPHER GUERCIO, MCCOYD PARKAS CLERK
& RONAN LLP, BILL P. PARKAS, ESQ., 3/26/2021 1:22 pm
RAYMOND E. VAN ZWIENEN, STACEY
U.S. DISTRICT COURT
MCGOVERN, PETER KIRWIN, SUE DESENA,
EASTERN DISTRICT OF NEW YORK
BRIDGETTE SEDENFELDER,
LONG ISLAND OFFICE
Defendants.
-------------------------------------------------------------X
AZRACK, United States District Judge:
On July 18, 2020, pro se plaintiff Yan Ping Xu (“Plaintiff”) filed a motion seeking
reconsideration of the Court’s July 14, 2020 Memorandum and Order dismissing her amended
complaint without prejudice for lack of subject matter jurisdiction pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(h)(3). (See ECF Nos. 76, 78.) Plaintiff also moved to stay the
cancelation of the lis pendens pending her appeal of the July 14, 2020 Memorandum and Order.
(See ECF No. 80.) On July 23, 2020, Plaintiff filed a Notice of Appeal and, on July 27, 2020, she
paid the filing fee. (See ECF Nos. 79, 87-88.) On July 27, 2020, Bill Parkas, Esq., McCoyd,
Parkas & Ronan LLP, Sue Desena, Christopher Guercio, Peter Kirwin, Stacey McGovern,
Bridgette Sedenfelder, Suffolk County, the Suffolk County Sheriff’s Department, and Errol D.
Toulon, Jr. (collectively, “Defendants”) filed opposition papers. (See ECF Nos. 84-85.) Plaintiff
filed her reply also on July 27, 2020. (See ECF No. 86.) Raymond Van Zwienen (“Van Zwienen”)
filed opposition papers on July 30, 2020 and Plaintiff filed a reply on August 3, 2020. (See ECF
Nos. 89, 94.) Further, by letter dated September 5, 2020, Plaintiff notified the Court that the
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property at issue in this case has twice been sold since this Court’s July 14, 2020 Memorandum
and Order. (See ECF No. 95.) For the reasons that follow, the Court denies Plaintiff’s motion for
reconsideration. And, even if the Court were to grant reconsideration, it would adhere to its July
14, 2020 Order. Plaintiff’s motion for a stay pending appeal is also denied.
A. The Standard for a Motion for Reconsideration
Plaintiff’s motion is brought pursuant to Local Civil Rule 6.3. The Rule provides that the
moving party must set forth “the matters or controlling decisions which counsel [or a pro se party]
believes the Court has overlooked.” See Local Civil Rule 6.3.1 “The standard for granting [] a
motion [for reconsideration] is strict, and [r]econsideration will generally be denied unless the
moving party can point to controlling decisions or data that the court overlooked-matters, in other
words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader
v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995). “A motion for reconsideration should be
granted only when the [moving party] identifies ‘an intervening change of controlling law, the
availability of new evidence, or the need to correct a clear error or prevent manifest injustice.’”
Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir.
2013) (quoting Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.
1992)). It is “well-settled” that a motion for reconsideration is “not a vehicle for relitigating old
1
Motions for reconsideration may also be brought pursuant to Rules 59(e) and 60(b) of the Federal Rules of Civil
Procedure. See U.S. v. Real Prop. & Premises Located at 249-20 Cambria Ave., Little Neck, N.Y. 11362, 21 F. Supp.
3d 254, 259 (E.D.N.Y. 2014). The standard for granting a motion for reconsideration pursuant to Rule 59(e) is “strict,
and reconsideration will generally be denied.” Herschaft v. New York City Campaign Fin. Bd., 139 F. Supp. 2d 282,
283 (E.D.N.Y. 2001) (internal quotation marks omitted). A motion for reconsideration under Rule 59(e) is appropriate
when the moving party can demonstrate that the court overlooked “controlling decisions or factual matters that were
put before it on the underlying motion . . . and which, had they been considered, might have reasonably altered the
result before the court.” Id. (internal quotation marks omitted). “Alternatively, the movant must demonstrate the need
to correct a clear error or prevent manifest injustice.” Id. at 284 (internal quotation marks omitted). Rule 60(b) is
“extraordinary judicial relief” and can be granted “only upon a showing of exceptional circumstances.” Nemaizer v.
Baker, 793 F.2d 58, 61 (2d Cir. 1986). Rule 60(b) of the Federal Rules of Civil Procedure also permits the Court to
relieve a party from an order in the event of mistake, inadvertence, excusable neglect, newly discovered evidence,
fraud, or in exceptional or extraordinary circumstances. Fed. R. Civ. P. 60(b).
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issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise
taking a ‘second bite at the apple.’” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36,
52 (2d Cir. 2012) (citation omitted). It is within the sound discretion of the district court whether
or not to grant a motion for reconsideration. See Gupta v. Attorney Gen. of United States, 52 F.
Supp. 3d 677, 679-80 (S.D.N.Y. 2014); Callari v. Blackman Plumbing Supply, Inc., 988 F. Supp.
2d 261, 287 (E.D.N.Y. 2013).
B. Application
Familiarity with the record and the July 14, 2020 Memorandum and Order is presumed.
Plaintiff contends that the dismissal of her complaint for lack of subject matter jurisdiction
pursuant to the Rooker-Feldman doctrine was erroneous for primarily two reasons.2
First, Plaintiff contends that her instant lawsuit is different from the underlying state court
litigation, making Rooker-Feldman’s bar inapplicable. In this regard, Plaintiff claims that because
the parties and claims in this action are different from those in the underlying state court case, the
Court erred by dismissing her amended complaint pursuant to the Rooker-Feldman doctrine.
Plaintiff asserts that “this action has completely differed from the Surrogate proceeding,” involves
different parties, and “is not grounded on the same factual grouping.” (See Notice of Motion for
Reconsideration, ECF No. 78.) Plaintiff also argues that Rooker-Feldman does not apply because
her claims are “based on the core events as to when and how to execute the Surrogate’s default
order and housing living issues.” (Id. at 1.) Additionally, in her reply papers, Plaintiff—citing
Sung Cho v. City of New York, 910 F. 3d 639, 645 (2d Cir. 2018), and the cases referenced
therein—argues that Rooker-Feldman does not apply because “[i]n this case, the causes of action
2
Plaintiff also claims that the Court erred when it stated she had resided at the subject premises since 2001, rather
than 1998. Although the Court referenced the date of Plaintiff’s marriage (2001), rather than the date she moved in
with the decedent and future husband (1998), this three-year difference has no bearing on and is not relevant to
Plaintiff’s claims. Accordingly, such discrepancy does not provide a basis to grant Plaintiff’s motion.
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included the events prior to the eviction, such as, the fraud and erroneous leading to the Surrogate’s
default order.” (See Pl.’s Reply to Van Zwienen’s Oppositions at 2, ECF No. 94.) Plaintiff insists
that her fraud claims and constitutional claims are not barred by Rooker-Feldman. (Id.)
Second, Plaintiff asserts that the Rooker-Feldman requirements have not been satisfied
because the third factor, that the state-court judgment must have been rendered before the district
court proceedings commenced, has not been met because the underlying state litigation has not yet
concluded given her pending state court appeal. Plaintiff also requests that, should the Court
adhere to its decision, the cancelation of the notice of lis pendens be stayed pending appeal.
Defendants oppose Plaintiff’s motion. (ECF Nos. 84-85, 89-91). Defendants assert that
Plaintiff’s motion is nothing more than an attempt to reargue her opposition to the motions to
dismiss the amended complaint. Because Plaintiff does not include any law or facts that the Court
overlooked, Defendants argue that her motion should be denied. Plaintiff filed a Reply only to
Van Zwienen’s Opposition. (ECF No. 94.) For the reasons that follow, the Court agrees with the
Defendants and denies Plaintiff’s motion.
1. The Court Finds No Basis to Reconsider Its Analysis Under Rooker-Feldman
Plaintiff’s brief submission does not point to any facts (other than the three-year
discrepancy of Plaintiff’s occupancy, see supra at 3, note 2) or controlling decisions that the Court
overlooked. Rather, Plaintiff disagrees with the Court’s application of Rooker-Feldman’s bar.
“When a federal suit follows a state suit, the former may, under certain circumstances, be
prohibited by . . . the Rooker-Feldman doctrine.” See Sung Cho v. City of New York, 910 F.3d
639, 644 (2d Cir. 2018). Plaintiff’s arguments concerning Rooker-Feldman were addressed (and
rejected) in the Court’s Memorandum and Order. (See ECF 76, generally.) To the extent
Plaintiff’s reconsideration motion seeks to raise new arguments that she did not previously
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advance, a reconsideration motion is not the appropriate vehicle to raise new arguments. In any
event, as discussed below, none of Plaintiff’s arguments warrant reconsideration or persuade the
Court that dismissal of this action without prejudice was improper.
As an initial matter, the Rooker-Feldman doctrine does not require that there be a complete
identity of parties in the underlying state-court action as the federal court case. See, e.g., Lomnicki
v. Cardinal McCloskey Servs., 04-CV-4548, 2007 WL 2176059, at *4 n.7 (S.D.N.Y. July 26,
2007) (noting that “[c]omplete identity of all parties does not appear necessary”); Bush v.
Danziger, 06-CV-5529, 2006 WL 3019572, at *4 n. 3 (S.D.N.Y. Oct. 23, 2006) (noting that the
Supreme Court “has not held that there must be complete identity of plaintiffs or parties in the two
proceedings”); -
see also -
- --- Bernstein
- - - - - -v.
- -State
---- of- -
New
- - -York,
- - - 06-CV-5681, 2007 WL 438169, at *5
(S.D.N.Y. Feb. 9, 2007). Indeed, “[i]t would not make sense for a plaintiff to be able to frustrate
Rooker-Feldman simply by naming an additional defendant who was not a party to the state court
action.” Lomnicki, 2007 WL 2176059, at n.7. Thus, the fact that there are additional Defendants
in the present case is not an obstacle to Rooker-Feldman’s bar. Gifford v. United N. Mortg.
Bankers, Ltd., No. 18-CV-324, 2019 WL 2912489, at *5 (S.D.N.Y. July 8, 2019) (“Rooker-
Feldman requires the federal court plaintiff to have been a party to the state court proceeding, but
it does not require the federal court defendants to have been party to the state court proceedings.”
(citing Omotosho v. Freeman Inv. & Loan, 136 F. Supp. 3d 235, 246-47 (D. Conn. 2016))).
Insofar as Plaintiff challenges the Court’s application of the Rooker-Feldman doctrine
because, she claims, the instant action alleges different legal theories than her state court actions,
she wholly ignores that the Court addressed this very point in the Memorandum and Order. (See
Mem. & Order at 13-14, ECF 76.) The Court made clear that:
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Although Plaintiff now also claims, inter alia, a deprivation of her constitutional
rights as a result of the judgment of the state court, the fact that plaintiff is alleging
a new claim - - discrimination - - does not change the injury about which she
complains, which was caused by the decision of the state court.
Mem. & Order at 13 (internal quotation marks and citation omitted) (emphasis added).
The Second Circuit has “developed the following formula to help guide [the analysis of
Rooker-Feldman]: ‘a federal suit complains of injury from a state-court judgment, even if it
appears to complain only of a third party’s actions, when the third party’s actions are produced by
a state-court judgment and not simply ratified, acquiesced in, or left unpunished by it.’” Sung
Cho, 910 F.3d at 646 (quoting Hoblock v. Albany Cty. Bd. of Elections, 422 F.3d 77, 88 (2d Cir.
2005)). Here, Plaintiff’s claimed injuries in this action were “produced by” the underlying state-
court judgment.3 Indeed, although Plaintiff challenges the conduct of third parties who enforced
the state court’s orders in executing her eviction, those actions were unquestionably produced by
the underlying state court judgment. As the record makes clear, the Sheriff effectuated the eviction
on December 14, 2018 pursuant to the state court orders. (ECF Nos. 73-5, 73-6, 74-5, 74-9, 74-
10.)
Plaintiff argues that the events prior to her eviction, including alleged fraud by Van
Zwienen, Parkas, and MPR LLP in procuring the state court default order, render Rooker-Feldman
inapplicable. The Court disagrees. The Rooker-Feldman doctrine will generally not apply where
a plaintiff’s claims “‘speak not to the propriety of the state court judgments, but to the fraudulent
3
For relief, Plaintiff asserts that
[her] actual residence in the subject premises should be reinstated, i.e., to the status quo before
12/14/2018. She is entitled to control and possess all and any tangible personal property, including
decedent’s automobile and items taken away from the subject real property, such as her computers,
in addition to awarding the treble amount of damages and punitive damages as well as compensatory
damages, costs, attorney’s fees if any, together with such other relief as the court deems proper.
(Am. Compl. ¶ 48, ECF 49.)
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course of conduct that defendants pursued in obtaining such judgments.’” Sung Cho, 910 F.3d at
645-46 (quoting Sykes v. Mel S. Harris and Assocs., LLC, 780 F.3d 70, 94-95 (2d Cir. 2015)).
Here, however, because the alleged fraudulent conduct is at the core of the underlying state court
orders, Rooker-Feldman bars review.4 See DaCosta v. Wilmington Trust, N.A., 19-CV-0913,
2019 WL 4071785, *5 (N.D.N.Y. Aug. 29, 2019) (finding Rooker-Feldman barred fraud claims
where such claims were “‘at the core of the very loan agreement that was not only found valid in
state court but was enforced by its judgment.’”) (quoting Desir v. Florida Capital Bank, N.A., 377
F. Supp. 3d 168, 173-74 (E.D.N.Y. 2019); accord Gifford v. United N. Mortg. Bankers, Ltd., No.
18-CV-6324, 2019 WL 2912489, at *5 (S.D.N.Y. July 8, 2019) (finding challenge to, inter alia,
the allegedly fraudulent judgment in the underlying state foreclosure action was “inextricably
intertwined” with the state court foreclosure action and thus barred by Rooker-Feldman).
This case is distinguishable from Sung Cho (and the cases cited therein) because Plaintiff
complains of injuries caused by the underlying state court orders. Indeed, in her demand for relief,
Plaintiff seeks “reinstatement [] [of] the status quo before December 14, 2018” and the return of
her personal property. (Am. Compl. ¶ 48.) Notably, December 14, 2018 is the date that the Sheriff
effected the eviction of Plaintiff from the premises pursuant to the April Order and the subsequent
orders from the Surrogate’s Court, and the Appellate Division, Second Department, denying
Plaintiff’s requests for interim relief. (ECF No. 74 at 10-11.) Plaintiff’s claims and requests for
injunctive relief complain of injuries caused by the state court orders and “speak[] to the propriety”
of the state court orders. Sung Cho, 910 F.3d at 645-46. Thus, they are barred by Rooker-Feldman.
See Fiorilla v. Citigroup Glob. Markets, Inc., 771 F. App’x 114, 115 (2d Cir. 2019) (summary
4
Not only did Plaintiff have several opportunities to bring any alleged fraud in the procurement of the February 16,
2018 Order to light in the state court, she did in fact raise these claims which were squarely rejected by the Surrogate’s
Court. (See April Order, ECF 73-6.) As such—irrespective of Rooker-Feldman’s applicability—Plaintiff’s fraud
claims are also barred by collateral estoppel.
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order) (rejecting attempt to set aside state court’s judgment and explaining that, in Vossbrinck v.
Accredited Home Lenders, Inc., 773 F.3d 423, 427 (2d Cir. 2014), the Second Circuit “clearly held
that a plaintiff cannot rely on allegations that the state court judgment at issue ‘was obtained
fraudulently’ to avoid application of the Rooker-Feldman doctrine.”); Vossbrinck, 773 F.3d at 427
(“To the extent Vossbrinck asks the federal court to grant him title to his property because the
foreclosure judgment was obtained fraudulently, Rooker-Feldman bars Vossbrinck’s claim.”).
Plaintiff’s damages claims, based on fraud and other purported misconduct, are also barred
by Rooker-Feldman. The damages she seeks, (see Am. Compl ¶¶ 47-48), were caused by the state
court orders at issue. See Fiorilla, 771 F. App’x at 115 (“Fiorilla’s fraud claim is ‘based upon the
fraud perpetrated upon the state court,’ . . . and the only ‘damage’ Fiorilla identifies from
defendants’ alleged fraud comes from the unfavorable state court judgment. Accordingly, his
fraud claim “invite[s] ... review and rejection of that judgment,” which is precisely what Rooker-
Feldman bars.” (citations omitted)); Charles v. Levitt, 716 F. App’x 18, 22 (2d Cir. 2017)
(summary order) (affirming that Rooker-Feldman precluded federal review where plaintiff’s
damages claims were “aimed at compensating him for the potential loss of the Property,” which
was caused by “allegedly wrongful actions related to the state court’s imposition and execution of
the Property’s receivership”); Roberts v. Perez, No. 13-CV-5612, 2014 WL 3883418, *3
(S.D.N.Y. Aug. 7, 2014) (“Most telling for purposes of Rooker-Feldman’s causation requirement,
Plaintiff suffered no tangible injuries prior to the issuance of the state-court judgment.”).
Finally, Plaintiff also argues that Rooker-Feldman does not apply because her state court
appeal is still pending. The Court squarely addressed the fact that the Plaintiff’s appeal of the
April 5, 2018 Order to the Appellate Division, Second Department, remains pending. Agreeing
with the “[c]ourts in this Circuit [that] have routinely applied Rooker-Feldman despite pending
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state-court appeals,” (see Mem. & Order at 14), the Court rejected Plaintiff’s contention otherwise
and raised in her opposition to the motions to dismiss and now again on reconsideration. Thus, in
the absence of any new evidence, a need to correct clear errors, or an intervening change in
controlling law, the Court adheres to its July 14, 2020 Memorandum and Order in its entirety. See
also Butcher v. Wendt, 975 F.3d 236, 244 n. 5 (2d Cir. 2020) (“District judges within our circuit
that have grappled with this issue have concluded that Rooker-Feldman applies even where there
is a pending state appeal of the challenged judgment. . . . “[and] this Court has strongly suggested—
without deciding—that it does.”). Accordingly, Plaintiff’s application for reconsideration is
denied.
The Court’s July 14, 2020 Memorandum and Order dismissed all of Plaintiff’s claims
without prejudice under Rooker-Feldman. As explained below, there also additional reasons why
dismissal of Plaintiff’s claims, without prejudice, is warranted here.
2. Plaintiff’s Federal Claims Also Fail on Other Grounds
Even if Rooker-Feldman did not bar all of Plaintiff’s claims, as explained below, Plaintiff
has failed to allege any plausible federal claims. It is well-established that pro se submissions are
afforded wide interpretational latitude and should be held “to less stringent standards than formal
pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); see also
Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997). In addition, the Court is required to read
Plaintiff’s pro se amended complaint liberally and interpret it as raising the strongest arguments it
suggests. United States v. Akinrosotu, 637 F.3d 165, 167 (2d Cir. 2011) (per curiam) (citation
omitted); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009).
The Supreme Court has held that pro se complaints need not even plead specific facts;
rather the complainant “need only give the defendant fair notice of what the . . . claim is and the
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grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks
and citations omitted); cf. FED. R. CIV. P. 8(e) (“Pleadings must be construed so as to do justice.”).
However, a pro se plaintiff must still plead “enough facts to state a claim to relief that is plausible
on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citations omitted). The plausibility standard requires “more than a sheer possibility
that a defendant has acted unlawfully.” Id. at 678. While “‘detailed factual allegations’” are not
required, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’” Id. at 678 (quoting Twombly, 550 U.S. at 555).
a. Section 1983
Section 1983 provides that
[e]very person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to be subjected, any citizen of the United
States . . . to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured . . . .
42 U.S.C. § 1983. In order to state a § 1983 claim, a plaintiff must allege two essential elements.
First, the conduct challenged must have been “committed by a person acting under color of state
law.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d 545,
547 (2d Cir. 1994)); --
see ---
also -----------------------
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (“[T]he
under color of-state law element of § 1983 excludes from its reach merely private conduct, no
matter how discriminatory or wrongful.”) (internal quotation marks and citation omitted). Second,
“the conduct complained of must have deprived a person of rights, privileges or immunities
secured by the Constitution or laws of the United States.” -
Id.; see ---
- --- also -
Snider
- - - -v.
--Dylag,
- - - 188 F.3d
51, 53 (2d Cir. 1999). In addition, in an action brought pursuant to § 1983, a plaintiff must allege
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the personal involvement of the defendant in the purported constitutional deprivation. Farid v.
Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (citing Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)).
b. Immunity
As an initial matter, the individual Suffolk County Defendants are entitled to both qualified
immunity and absolute quasi-judicial immunity. In evicting Plaintiff, they were acting pursuant
to a directive from the state court. (See ECF Nos. 73-6, 73-10, 74-10.)
“A government official sued under § 1983 is entitled to qualified immunity unless the
official violated a statutory or constitutional right that was clearly established at the time of the
challenged conduct.” Carroll v. Carmen, 574 U.S. 13, 16 (2014) (citing Ashcroft v. al-Kidd, 563
U.S. 731, 735 (2011)). Qualified immunity is available if it was “objectively reasonable” for the
official “at the time of the challenged action to believe his acts were lawful.” Taravella v. Town
of Wolcott, 599 F.3d 129, 134 (2d Cir. 2010) (quoting Higazy v. Templeton, 505 F.3d 161, 169-
70 (2d Cir. 2007)). “The objective reasonableness inquiry of whether the shield of qualified
immunity applies to a defendant’s conduct is a mixed question of law and fact.” Matthews v. City
of New York, 374 F.3d 93, 109 (2d Cir. 2004)). Here, the individual Suffolk County Defendants
are shielded by qualified immunity because, at the time of the December 14, 2018 eviction, the
Surrogate’s Court had, on December 3, 2018, denied Plaintiff’s application to stay the April Order
mandating that the Suffolk County Sheriff evict her. (See ECF No. 74-9.) Furthermore, a week
before her eviction, on December 7, 2018, the Appellate Division, Second Department, signed
Plaintiff’s Order to Show Cause seeking, inter alia, an expedited hearing on her request to vacate
the Surrogate Court’s Order, but did not grant Plaintiff any interim relief and explicitly struck the
language in Plaintiff’s submission that requested that Van Zwienen and the Sheriff be retrained
from entering the subject premises pending decision on the motion. (See ECF No. 74-10.) See,
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e.g., Tomassi v. Sheehan, No. 15-CV-3605, 2016 WL 4768826, at *7-8 (E.D.N.Y. Aug. 23, 2016),
report and recommendation adopted, No. 15-CV-3605, 2016 WL 4767539 (E.D.N.Y. Sept. 13,
2016) (qualified immunity shielded defendants from liability where eviction was effected pursuant
to a “facially valid court order that they were required by law to execute”); Tornheim v. Eason,
363 F. Supp. 2d 674, 676-677 (S.D.N.Y. 2005) (“[W]hen a sheriff executes a facially valid court
order, he is afforded complete protection from liability . . . for any proper act done in its
execution.”) (internal quotation marks and citation omitted). Thus, because the December 14,
2018 eviction of Plaintiff was done in accordance with the state court orders (see ECF Nos. 73-6,
73-10, 74-10), and, in the absence of an order staying the eviction, the individual Suffolk County
Defendants are shielded from liability by qualified immunity.
Further, absolute quasi-judicial immunity also protects the individual Suffolk County
Defendants from liability because they were executing the state court’s facially valid order of
eviction, in accordance with their duty to carry out mandates of the court. See, e.g., Tomassi, 2016
WL 4768826, *9 (“As the enforcement arm of the Suffolk County District Court, Defendants are
entitled to quasi-judicial immunity for their acts.”); Maldonado v. N.Y. Cnty. Sheriff, No. 05-CV-
8377, 2006 WL 2588911, at *5 (S.D.N.Y. Sept. 6, 2006) (holding that defendants executing a
facially valid order of eviction are protected by quasi-judicial immunity).
c. Monell Liability
Moreover, Plaintiff has not plausibly alleged a Section 1983 claim against Suffolk County.
In order to hold a municipal entity liable under Section 1983, a plaintiff must demonstrate that the
constitutional violation complained of was caused by a municipal “policy or custom.” Monell v.
Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 694 (1978). A policy, custom, or practice of a
municipal entity may be inferred where “‘the municipality so failed to train its employees as to
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display a deliberate indifference to the constitutional rights of those within its jurisdiction.’”
Patterson v. Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004) (internal quotation marks and citation
omitted)). Here, even if the Amended Complaint plausibly alleged an underlying Fourth or
Fourteenth Amendment claim against Suffolk County, which it does not (see infra at 15-16),
Plaintiff has not satisfied Monell. In this regard, Plaintiff’s Amended Complaint alleges, in
conclusory fashion, that “[s]ince 10/19/2018, defendant Sheriff Toulon has been informed of the
eviction issue by plaintiff. Sheriff was fully aware of the issue. He, however, supervised, trained
and instructed his deputies to seize plaintiff’s home negligently and did not prevent them from said
seizure.” (Am Compl. ¶ 17.) As the record makes abundantly clear, the Suffolk County
Defendants effected Plaintiff’s eviction pursuant to a facially valid order of eviction issued by the
Surrogate’s Court on April 5, 2018 and a stay of which was denied by both the Surrogate Court on
December 3, 2018 and the Appellate Division on December 7, 2018. (See ECF Nos. 73-6, 73-10,
74-10.)
d. Fourth Amendment Claim
Plaintiff’s underlying Fourth Amendment claim also fails because the entry into (and
seizure of) the subject premises by the Sheriff was authorized—and, indeed mandated—by the
April Order and subsequent orders issued by the state courts. The April Order explicitly stated
“upon being presented with a certified copy of this order and the transcript thereof, the Sheriff of
the County of Suffolk shall be and is hereby immediately required to enter upon the premises
located at 12 Mallar Avenue, Bay Shore, New York, and eject therefrom Yan Ping Xu . . . and to
put petitioner into possession of said premises.” (April Order at 7, ECF 73-6.) Subsequently,
Plaintiff failed to provide the undertaking mandated by the Surrogate’s Court in order to obtain a
stay. (October 10, 2018 Order, ECF No. 73-9; Dec. 3, 2018 Order, ECF No. 73-10). When
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Plaintiff sought to appeal the Surrogate’s Court, the Appellate Division granted Plaintiff an
expedited appearance to hear her request for a preliminary injunction and TRO, (ECF No. 74-10),
but granted her no interim injunctive relief and subsequently denied Plaintiff’s requests for such
relief on January 15, 2019. (ECF Nos. 73-11, 74-11.)
Plaintiff’s citation to Soldal v. Cook Cty., Ill., 506 U.S. 56 (1992) is inapposite. In Soldal,
a landlord—who had not yet obtained an order of eviction in state court—allegedly conspired with
Sherriff’s deputies to evict the plaintiffs by removing the plaintiffs’ mobile home. Id. at 58-59.
The Sheriff’s deputies, who knew the landlord had not obtained an eviction order and knew that
the landlord’s actions were unlawful, refused to intervene. Id. at. 59-60. Here, in sharp contrast,
the April Order directed the Suffolk County Sheriff to evict Plaintiff from the property and Plaintiff
did not obtain a stay of that order. See Soldal, 506 U.S. at 71 (“Assuming, for example, that the
officers were acting pursuant to a court order, . . . and as often would be the case, a showing of
unreasonableness on these facts would be a laborious task indeed.”).
Plaintiff suggests that because the Defendants did not obtain a warrant, under N.Y. Real
Property Actions and Proceedings Law (“RPAPL”) § 749, before evicting her, she has a viable
Fourth Amendment claim. Plaintiff misapprehends Soldal and the Fourth Amendment. N.Y.
RPAPL § 749 states that “[u]pon rendering a final judgment for petitioner, the court shall issue a
warrant directed to the sheriff of the county . . . stating the earliest date upon which execution may
occur pursuant to the order of the court, and commanding the officer to remove all persons named
in the proceeding . . . .” Plaintiff contends that, under New York law, the Surrogate’s Court had
to issue a separate warrant of eviction and that the April Order was insufficient. In support,
Plaintiff cites a 1921 decision which suggests that the court must issue a separate warrant of
eviction. See Rockaway Point Co. v. Friberg, 198 A.D. 923, 923, 189 N.Y.S. 936 (App. Div.
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1921), aff’d, 232 N.Y. 599, 134 N.E. 587 (1922) (“We can find no authority for the attempted
combination of the warrant with the final order.”)
Plaintiff, however, misapprehends the requirements of a Fourth Amendment claim. Even
if Plaintiff were correct and the Surrogate’s Court erred by not issuing a separate warrant of
eviction under § RPAPL § 749,5 any such purported violation of state law does not establish a
Fourth Amendment violation. The Suffolk County Defendants evicted Plaintiff pursuant to the
directive of the April Order. A Fourth Amendment claim is analyzed under a “reasonableness”
standard. Soldal, 506 U.S. at 71 (“Reasonableness is . . . the ultimate standard under the Fourth
Amendment.”). “To determine whether a seizure is unreasonable, a court must ‘balance the nature
and quality of the intrusion on the individual’s Fourth Amendment interests against the importance
of the governmental interest alleged to justify the intrusion’ and determine whether ‘the totality of
the circumstances justified [the] particular sort of . . . seizure.’” Pollok v. Chen, 806 F. App’x 40,
44 (2d Cir. 2020) (summary order) (quoting Carroll v. Cty. of Monroe, 712 F.3d 649, 651 (2d Cir.
2013) (citation omitted)). In Pollack, the Second Circuit recently explained, citing Soldal, that
“Fourth Amendment interests - - whether freedom from an unreasonable seizure of the apartment
itself or their personal property in the apartment or both - - do not overcome the state’s interest in
. . . carrying out orders of the state courts and returning property to its rightful owner.” Pollok,
806 F. App’x at 44; --
see ---
also -------------------------
DeSouza v. Park W. Apartments, Inc., No. 15-CV-01668, 2018 WL
2990099, at *17 (D. Conn. June 14, 2018), on reconsideration, No. 15-CV-01668, 2018 WL
4935997 (D. Conn. Oct. 11, 2018) (rejecting Fourth Amendment claim and finding that
defendant’s “initiation of lawful eviction proceedings hardly constitutes an unlawful seizure” of
plaintiff’s property).
5
It is not clear if Plaintiff ever raised this issue about an eviction warrant in state court. In any event, the Appellate
Division refused to stay the April Order, which indicates that Plaintiff’s eviction comported with New York law.
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Plaintiff’s argument conflates the fact that, in some circumstances, the Fourth Amendment
requires a warrant for a search or seizure with an alleged requirement under New York law that an
eviction warrant is required under N.Y. RPAPL § 749 before a Plaintiff can be evicted. Here, the
April Order—which the Appellate Division refused to stay or vacate—directed the Suffolk County
Sheriff to evict Plaintiff. Those state court orders preclude Plaintiff’s Fourth Amendment claims.6
e. Due Process Claims
Plaintiff also alleges procedural and substantive due process claims under the Fourteenth
Amendment. Plaintiff’s procedural due process claim is, at bottom, a claim that her eviction failed
to comport, in various respects, with the dictates of New York law. (See Pl.’s Opp’n Br. at 15-
16.) That is insufficient to state a plausible due process claim. “Procedural due process imposes
constraints on governmental decisions which deprive individuals of liberty or property interests
within the meaning of the Due Process Clause of the . . . Fourteenth Amendment.” Mathews v.
Eldridge, 424 U.S. 319, 332 (1976) (internal quotation marks omitted). Substantive due process
requires plaintiff to show deprivation of a constitutional right under circumstances that were
“arbitrary” and “outrageous,” typically as demonstrated by conduct that “shocks the conscience.”
See Natale v. Town of Ridgefield, 170 F.3d 258, 262 (2d Cir. 1999) (quoting Rochin v. Cal., 342
U.S. 165, 172 (1952)). Violation of the substantive standards of the Due Process Clause requires
“conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental authority.”
Natale, 170 F.3d at 259.
To prove a procedural due process violation, a plaintiff must demonstrate that (1) she had
a constitutionally protected liberty or property interest and (2) she was deprived of that interest
6
As explained earlier, Plaintiffs’ Fourth Amendment claims against the individual Suffolk County Defendants are
also precluded by qualified and absolute immunity and she has not plausibly alleged a Monell claim against Suffolk
County.
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Preview
FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 05/15/2023 EXHIBIT M FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 CaseNO. NYSCEF DOC. 2:19-cv-01362-JMA-ARL 68 Document 96 Filed 03/26/21 Page 1 RECEIVED of 23 PageID #: 2353 NYSCEF: 05/15/2023 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK For Online Publication Only -------------------------------------------------------------X YAN PING XU, Plaintiff, MEMORANDUM & ORDER -against- 19-CV-1362 (JMA) (ARL) SUFFOLK COUNTY, SUFFOLK COUNTY SHERIFF OFFICE, ERROL D. TOULON, JR., FILED CHRISTOPHER GUERCIO, MCCOYD PARKAS CLERK & RONAN LLP, BILL P. PARKAS, ESQ., 3/26/2021 1:22 pm RAYMOND E. VAN ZWIENEN, STACEY U.S. DISTRICT COURT MCGOVERN, PETER KIRWIN, SUE DESENA, EASTERN DISTRICT OF NEW YORK BRIDGETTE SEDENFELDER, LONG ISLAND OFFICE Defendants. -------------------------------------------------------------X AZRACK, United States District Judge: On July 18, 2020, pro se plaintiff Yan Ping Xu (“Plaintiff”) filed a motion seeking reconsideration of the Court’s July 14, 2020 Memorandum and Order dismissing her amended complaint without prejudice for lack of subject matter jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(h)(3). (See ECF Nos. 76, 78.) Plaintiff also moved to stay the cancelation of the lis pendens pending her appeal of the July 14, 2020 Memorandum and Order. (See ECF No. 80.) On July 23, 2020, Plaintiff filed a Notice of Appeal and, on July 27, 2020, she paid the filing fee. (See ECF Nos. 79, 87-88.) On July 27, 2020, Bill Parkas, Esq., McCoyd, Parkas & Ronan LLP, Sue Desena, Christopher Guercio, Peter Kirwin, Stacey McGovern, Bridgette Sedenfelder, Suffolk County, the Suffolk County Sheriff’s Department, and Errol D. Toulon, Jr. (collectively, “Defendants”) filed opposition papers. (See ECF Nos. 84-85.) Plaintiff filed her reply also on July 27, 2020. (See ECF No. 86.) Raymond Van Zwienen (“Van Zwienen”) filed opposition papers on July 30, 2020 and Plaintiff filed a reply on August 3, 2020. (See ECF Nos. 89, 94.) Further, by letter dated September 5, 2020, Plaintiff notified the Court that the FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 CaseNO. NYSCEF DOC. 2:19-cv-01362-JMA-ARL 68 Document 96 Filed 03/26/21 Page 2 RECEIVED of 23 PageID #: 2354 NYSCEF: 05/15/2023 property at issue in this case has twice been sold since this Court’s July 14, 2020 Memorandum and Order. (See ECF No. 95.) For the reasons that follow, the Court denies Plaintiff’s motion for reconsideration. And, even if the Court were to grant reconsideration, it would adhere to its July 14, 2020 Order. Plaintiff’s motion for a stay pending appeal is also denied. A. The Standard for a Motion for Reconsideration Plaintiff’s motion is brought pursuant to Local Civil Rule 6.3. The Rule provides that the moving party must set forth “the matters or controlling decisions which counsel [or a pro se party] believes the Court has overlooked.” See Local Civil Rule 6.3.1 “The standard for granting [] a motion [for reconsideration] is strict, and [r]econsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995). “A motion for reconsideration should be granted only when the [moving party] identifies ‘an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.’” Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013) (quoting Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)). It is “well-settled” that a motion for reconsideration is “not a vehicle for relitigating old 1 Motions for reconsideration may also be brought pursuant to Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure. See U.S. v. Real Prop. & Premises Located at 249-20 Cambria Ave., Little Neck, N.Y. 11362, 21 F. Supp. 3d 254, 259 (E.D.N.Y. 2014). The standard for granting a motion for reconsideration pursuant to Rule 59(e) is “strict, and reconsideration will generally be denied.” Herschaft v. New York City Campaign Fin. Bd., 139 F. Supp. 2d 282, 283 (E.D.N.Y. 2001) (internal quotation marks omitted). A motion for reconsideration under Rule 59(e) is appropriate when the moving party can demonstrate that the court overlooked “controlling decisions or factual matters that were put before it on the underlying motion . . . and which, had they been considered, might have reasonably altered the result before the court.” Id. (internal quotation marks omitted). “Alternatively, the movant must demonstrate the need to correct a clear error or prevent manifest injustice.” Id. at 284 (internal quotation marks omitted). Rule 60(b) is “extraordinary judicial relief” and can be granted “only upon a showing of exceptional circumstances.” Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986). Rule 60(b) of the Federal Rules of Civil Procedure also permits the Court to relieve a party from an order in the event of mistake, inadvertence, excusable neglect, newly discovered evidence, fraud, or in exceptional or extraordinary circumstances. Fed. R. Civ. P. 60(b). 2 FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 CaseNO. NYSCEF DOC. 2:19-cv-01362-JMA-ARL 68 Document 96 Filed 03/26/21 Page 3 RECEIVED of 23 PageID #: 2355 NYSCEF: 05/15/2023 issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a ‘second bite at the apple.’” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (citation omitted). It is within the sound discretion of the district court whether or not to grant a motion for reconsideration. See Gupta v. Attorney Gen. of United States, 52 F. Supp. 3d 677, 679-80 (S.D.N.Y. 2014); Callari v. Blackman Plumbing Supply, Inc., 988 F. Supp. 2d 261, 287 (E.D.N.Y. 2013). B. Application Familiarity with the record and the July 14, 2020 Memorandum and Order is presumed. Plaintiff contends that the dismissal of her complaint for lack of subject matter jurisdiction pursuant to the Rooker-Feldman doctrine was erroneous for primarily two reasons.2 First, Plaintiff contends that her instant lawsuit is different from the underlying state court litigation, making Rooker-Feldman’s bar inapplicable. In this regard, Plaintiff claims that because the parties and claims in this action are different from those in the underlying state court case, the Court erred by dismissing her amended complaint pursuant to the Rooker-Feldman doctrine. Plaintiff asserts that “this action has completely differed from the Surrogate proceeding,” involves different parties, and “is not grounded on the same factual grouping.” (See Notice of Motion for Reconsideration, ECF No. 78.) Plaintiff also argues that Rooker-Feldman does not apply because her claims are “based on the core events as to when and how to execute the Surrogate’s default order and housing living issues.” (Id. at 1.) Additionally, in her reply papers, Plaintiff—citing Sung Cho v. City of New York, 910 F. 3d 639, 645 (2d Cir. 2018), and the cases referenced therein—argues that Rooker-Feldman does not apply because “[i]n this case, the causes of action 2 Plaintiff also claims that the Court erred when it stated she had resided at the subject premises since 2001, rather than 1998. Although the Court referenced the date of Plaintiff’s marriage (2001), rather than the date she moved in with the decedent and future husband (1998), this three-year difference has no bearing on and is not relevant to Plaintiff’s claims. Accordingly, such discrepancy does not provide a basis to grant Plaintiff’s motion. 3 FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 CaseNO. NYSCEF DOC. 2:19-cv-01362-JMA-ARL 68 Document 96 Filed 03/26/21 Page 4 RECEIVED of 23 PageID #: 2356 NYSCEF: 05/15/2023 included the events prior to the eviction, such as, the fraud and erroneous leading to the Surrogate’s default order.” (See Pl.’s Reply to Van Zwienen’s Oppositions at 2, ECF No. 94.) Plaintiff insists that her fraud claims and constitutional claims are not barred by Rooker-Feldman. (Id.) Second, Plaintiff asserts that the Rooker-Feldman requirements have not been satisfied because the third factor, that the state-court judgment must have been rendered before the district court proceedings commenced, has not been met because the underlying state litigation has not yet concluded given her pending state court appeal. Plaintiff also requests that, should the Court adhere to its decision, the cancelation of the notice of lis pendens be stayed pending appeal. Defendants oppose Plaintiff’s motion. (ECF Nos. 84-85, 89-91). Defendants assert that Plaintiff’s motion is nothing more than an attempt to reargue her opposition to the motions to dismiss the amended complaint. Because Plaintiff does not include any law or facts that the Court overlooked, Defendants argue that her motion should be denied. Plaintiff filed a Reply only to Van Zwienen’s Opposition. (ECF No. 94.) For the reasons that follow, the Court agrees with the Defendants and denies Plaintiff’s motion. 1. The Court Finds No Basis to Reconsider Its Analysis Under Rooker-Feldman Plaintiff’s brief submission does not point to any facts (other than the three-year discrepancy of Plaintiff’s occupancy, see supra at 3, note 2) or controlling decisions that the Court overlooked. Rather, Plaintiff disagrees with the Court’s application of Rooker-Feldman’s bar. “When a federal suit follows a state suit, the former may, under certain circumstances, be prohibited by . . . the Rooker-Feldman doctrine.” See Sung Cho v. City of New York, 910 F.3d 639, 644 (2d Cir. 2018). Plaintiff’s arguments concerning Rooker-Feldman were addressed (and rejected) in the Court’s Memorandum and Order. (See ECF 76, generally.) To the extent Plaintiff’s reconsideration motion seeks to raise new arguments that she did not previously 4 FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 CaseNO. NYSCEF DOC. 2:19-cv-01362-JMA-ARL 68 Document 96 Filed 03/26/21 Page 5 RECEIVED of 23 PageID #: 2357 NYSCEF: 05/15/2023 advance, a reconsideration motion is not the appropriate vehicle to raise new arguments. In any event, as discussed below, none of Plaintiff’s arguments warrant reconsideration or persuade the Court that dismissal of this action without prejudice was improper. As an initial matter, the Rooker-Feldman doctrine does not require that there be a complete identity of parties in the underlying state-court action as the federal court case. See, e.g., Lomnicki v. Cardinal McCloskey Servs., 04-CV-4548, 2007 WL 2176059, at *4 n.7 (S.D.N.Y. July 26, 2007) (noting that “[c]omplete identity of all parties does not appear necessary”); Bush v. Danziger, 06-CV-5529, 2006 WL 3019572, at *4 n. 3 (S.D.N.Y. Oct. 23, 2006) (noting that the Supreme Court “has not held that there must be complete identity of plaintiffs or parties in the two proceedings”); - see also - - --- Bernstein - - - - - -v. - -State ---- of- - New - - -York, - - - 06-CV-5681, 2007 WL 438169, at *5 (S.D.N.Y. Feb. 9, 2007). Indeed, “[i]t would not make sense for a plaintiff to be able to frustrate Rooker-Feldman simply by naming an additional defendant who was not a party to the state court action.” Lomnicki, 2007 WL 2176059, at n.7. Thus, the fact that there are additional Defendants in the present case is not an obstacle to Rooker-Feldman’s bar. Gifford v. United N. Mortg. Bankers, Ltd., No. 18-CV-324, 2019 WL 2912489, at *5 (S.D.N.Y. July 8, 2019) (“Rooker- Feldman requires the federal court plaintiff to have been a party to the state court proceeding, but it does not require the federal court defendants to have been party to the state court proceedings.” (citing Omotosho v. Freeman Inv. & Loan, 136 F. Supp. 3d 235, 246-47 (D. Conn. 2016))). Insofar as Plaintiff challenges the Court’s application of the Rooker-Feldman doctrine because, she claims, the instant action alleges different legal theories than her state court actions, she wholly ignores that the Court addressed this very point in the Memorandum and Order. (See Mem. & Order at 13-14, ECF 76.) The Court made clear that: 5 FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 CaseNO. NYSCEF DOC. 2:19-cv-01362-JMA-ARL 68 Document 96 Filed 03/26/21 Page 6 RECEIVED of 23 PageID #: 2358 NYSCEF: 05/15/2023 Although Plaintiff now also claims, inter alia, a deprivation of her constitutional rights as a result of the judgment of the state court, the fact that plaintiff is alleging a new claim - - discrimination - - does not change the injury about which she complains, which was caused by the decision of the state court. Mem. & Order at 13 (internal quotation marks and citation omitted) (emphasis added). The Second Circuit has “developed the following formula to help guide [the analysis of Rooker-Feldman]: ‘a federal suit complains of injury from a state-court judgment, even if it appears to complain only of a third party’s actions, when the third party’s actions are produced by a state-court judgment and not simply ratified, acquiesced in, or left unpunished by it.’” Sung Cho, 910 F.3d at 646 (quoting Hoblock v. Albany Cty. Bd. of Elections, 422 F.3d 77, 88 (2d Cir. 2005)). Here, Plaintiff’s claimed injuries in this action were “produced by” the underlying state- court judgment.3 Indeed, although Plaintiff challenges the conduct of third parties who enforced the state court’s orders in executing her eviction, those actions were unquestionably produced by the underlying state court judgment. As the record makes clear, the Sheriff effectuated the eviction on December 14, 2018 pursuant to the state court orders. (ECF Nos. 73-5, 73-6, 74-5, 74-9, 74- 10.) Plaintiff argues that the events prior to her eviction, including alleged fraud by Van Zwienen, Parkas, and MPR LLP in procuring the state court default order, render Rooker-Feldman inapplicable. The Court disagrees. The Rooker-Feldman doctrine will generally not apply where a plaintiff’s claims “‘speak not to the propriety of the state court judgments, but to the fraudulent 3 For relief, Plaintiff asserts that [her] actual residence in the subject premises should be reinstated, i.e., to the status quo before 12/14/2018. She is entitled to control and possess all and any tangible personal property, including decedent’s automobile and items taken away from the subject real property, such as her computers, in addition to awarding the treble amount of damages and punitive damages as well as compensatory damages, costs, attorney’s fees if any, together with such other relief as the court deems proper. (Am. Compl. ¶ 48, ECF 49.) 6 FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 CaseNO. NYSCEF DOC. 2:19-cv-01362-JMA-ARL 68 Document 96 Filed 03/26/21 Page 7 RECEIVED of 23 PageID #: 2359 NYSCEF: 05/15/2023 course of conduct that defendants pursued in obtaining such judgments.’” Sung Cho, 910 F.3d at 645-46 (quoting Sykes v. Mel S. Harris and Assocs., LLC, 780 F.3d 70, 94-95 (2d Cir. 2015)). Here, however, because the alleged fraudulent conduct is at the core of the underlying state court orders, Rooker-Feldman bars review.4 See DaCosta v. Wilmington Trust, N.A., 19-CV-0913, 2019 WL 4071785, *5 (N.D.N.Y. Aug. 29, 2019) (finding Rooker-Feldman barred fraud claims where such claims were “‘at the core of the very loan agreement that was not only found valid in state court but was enforced by its judgment.’”) (quoting Desir v. Florida Capital Bank, N.A., 377 F. Supp. 3d 168, 173-74 (E.D.N.Y. 2019); accord Gifford v. United N. Mortg. Bankers, Ltd., No. 18-CV-6324, 2019 WL 2912489, at *5 (S.D.N.Y. July 8, 2019) (finding challenge to, inter alia, the allegedly fraudulent judgment in the underlying state foreclosure action was “inextricably intertwined” with the state court foreclosure action and thus barred by Rooker-Feldman). This case is distinguishable from Sung Cho (and the cases cited therein) because Plaintiff complains of injuries caused by the underlying state court orders. Indeed, in her demand for relief, Plaintiff seeks “reinstatement [] [of] the status quo before December 14, 2018” and the return of her personal property. (Am. Compl. ¶ 48.) Notably, December 14, 2018 is the date that the Sheriff effected the eviction of Plaintiff from the premises pursuant to the April Order and the subsequent orders from the Surrogate’s Court, and the Appellate Division, Second Department, denying Plaintiff’s requests for interim relief. (ECF No. 74 at 10-11.) Plaintiff’s claims and requests for injunctive relief complain of injuries caused by the state court orders and “speak[] to the propriety” of the state court orders. Sung Cho, 910 F.3d at 645-46. Thus, they are barred by Rooker-Feldman. See Fiorilla v. Citigroup Glob. Markets, Inc., 771 F. App’x 114, 115 (2d Cir. 2019) (summary 4 Not only did Plaintiff have several opportunities to bring any alleged fraud in the procurement of the February 16, 2018 Order to light in the state court, she did in fact raise these claims which were squarely rejected by the Surrogate’s Court. (See April Order, ECF 73-6.) As such—irrespective of Rooker-Feldman’s applicability—Plaintiff’s fraud claims are also barred by collateral estoppel. 7 FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 CaseNO. NYSCEF DOC. 2:19-cv-01362-JMA-ARL 68 Document 96 Filed 03/26/21 Page 8 RECEIVED of 23 PageID #: 2360 NYSCEF: 05/15/2023 order) (rejecting attempt to set aside state court’s judgment and explaining that, in Vossbrinck v. Accredited Home Lenders, Inc., 773 F.3d 423, 427 (2d Cir. 2014), the Second Circuit “clearly held that a plaintiff cannot rely on allegations that the state court judgment at issue ‘was obtained fraudulently’ to avoid application of the Rooker-Feldman doctrine.”); Vossbrinck, 773 F.3d at 427 (“To the extent Vossbrinck asks the federal court to grant him title to his property because the foreclosure judgment was obtained fraudulently, Rooker-Feldman bars Vossbrinck’s claim.”). Plaintiff’s damages claims, based on fraud and other purported misconduct, are also barred by Rooker-Feldman. The damages she seeks, (see Am. Compl ¶¶ 47-48), were caused by the state court orders at issue. See Fiorilla, 771 F. App’x at 115 (“Fiorilla’s fraud claim is ‘based upon the fraud perpetrated upon the state court,’ . . . and the only ‘damage’ Fiorilla identifies from defendants’ alleged fraud comes from the unfavorable state court judgment. Accordingly, his fraud claim “invite[s] ... review and rejection of that judgment,” which is precisely what Rooker- Feldman bars.” (citations omitted)); Charles v. Levitt, 716 F. App’x 18, 22 (2d Cir. 2017) (summary order) (affirming that Rooker-Feldman precluded federal review where plaintiff’s damages claims were “aimed at compensating him for the potential loss of the Property,” which was caused by “allegedly wrongful actions related to the state court’s imposition and execution of the Property’s receivership”); Roberts v. Perez, No. 13-CV-5612, 2014 WL 3883418, *3 (S.D.N.Y. Aug. 7, 2014) (“Most telling for purposes of Rooker-Feldman’s causation requirement, Plaintiff suffered no tangible injuries prior to the issuance of the state-court judgment.”). Finally, Plaintiff also argues that Rooker-Feldman does not apply because her state court appeal is still pending. The Court squarely addressed the fact that the Plaintiff’s appeal of the April 5, 2018 Order to the Appellate Division, Second Department, remains pending. Agreeing with the “[c]ourts in this Circuit [that] have routinely applied Rooker-Feldman despite pending 8 FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 CaseNO. NYSCEF DOC. 2:19-cv-01362-JMA-ARL 68 Document 96 Filed 03/26/21 Page 9 RECEIVED of 23 PageID #: 2361 NYSCEF: 05/15/2023 state-court appeals,” (see Mem. & Order at 14), the Court rejected Plaintiff’s contention otherwise and raised in her opposition to the motions to dismiss and now again on reconsideration. Thus, in the absence of any new evidence, a need to correct clear errors, or an intervening change in controlling law, the Court adheres to its July 14, 2020 Memorandum and Order in its entirety. See also Butcher v. Wendt, 975 F.3d 236, 244 n. 5 (2d Cir. 2020) (“District judges within our circuit that have grappled with this issue have concluded that Rooker-Feldman applies even where there is a pending state appeal of the challenged judgment. . . . “[and] this Court has strongly suggested— without deciding—that it does.”). Accordingly, Plaintiff’s application for reconsideration is denied. The Court’s July 14, 2020 Memorandum and Order dismissed all of Plaintiff’s claims without prejudice under Rooker-Feldman. As explained below, there also additional reasons why dismissal of Plaintiff’s claims, without prejudice, is warranted here. 2. Plaintiff’s Federal Claims Also Fail on Other Grounds Even if Rooker-Feldman did not bar all of Plaintiff’s claims, as explained below, Plaintiff has failed to allege any plausible federal claims. It is well-established that pro se submissions are afforded wide interpretational latitude and should be held “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); see also Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997). In addition, the Court is required to read Plaintiff’s pro se amended complaint liberally and interpret it as raising the strongest arguments it suggests. United States v. Akinrosotu, 637 F.3d 165, 167 (2d Cir. 2011) (per curiam) (citation omitted); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). The Supreme Court has held that pro se complaints need not even plead specific facts; rather the complainant “need only give the defendant fair notice of what the . . . claim is and the 9 FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 Case NO. NYSCEF DOC. 2:19-cv-01362-JMA-ARL 68 Document 96 Filed 03/26/21 Page 10RECEIVED of 23 PageID #: 2362 NYSCEF: 05/15/2023 grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks and citations omitted); cf. FED. R. CIV. P. 8(e) (“Pleadings must be construed so as to do justice.”). However, a pro se plaintiff must still plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). The plausibility standard requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678. While “‘detailed factual allegations’” are not required, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. at 678 (quoting Twombly, 550 U.S. at 555). a. Section 1983 Section 1983 provides that [e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . . 42 U.S.C. § 1983. In order to state a § 1983 claim, a plaintiff must allege two essential elements. First, the conduct challenged must have been “committed by a person acting under color of state law.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)); -- see --- also ----------------------- Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (“[T]he under color of-state law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.”) (internal quotation marks and citation omitted). Second, “the conduct complained of must have deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States.” - Id.; see --- - --- also - Snider - - - -v. --Dylag, - - - 188 F.3d 51, 53 (2d Cir. 1999). In addition, in an action brought pursuant to § 1983, a plaintiff must allege 10 FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 Case NO. NYSCEF DOC. 2:19-cv-01362-JMA-ARL 68 Document 96 Filed 03/26/21 Page 11RECEIVED of 23 PageID #: 2363 NYSCEF: 05/15/2023 the personal involvement of the defendant in the purported constitutional deprivation. Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (citing Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)). b. Immunity As an initial matter, the individual Suffolk County Defendants are entitled to both qualified immunity and absolute quasi-judicial immunity. In evicting Plaintiff, they were acting pursuant to a directive from the state court. (See ECF Nos. 73-6, 73-10, 74-10.) “A government official sued under § 1983 is entitled to qualified immunity unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” Carroll v. Carmen, 574 U.S. 13, 16 (2014) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). Qualified immunity is available if it was “objectively reasonable” for the official “at the time of the challenged action to believe his acts were lawful.” Taravella v. Town of Wolcott, 599 F.3d 129, 134 (2d Cir. 2010) (quoting Higazy v. Templeton, 505 F.3d 161, 169- 70 (2d Cir. 2007)). “The objective reasonableness inquiry of whether the shield of qualified immunity applies to a defendant’s conduct is a mixed question of law and fact.” Matthews v. City of New York, 374 F.3d 93, 109 (2d Cir. 2004)). Here, the individual Suffolk County Defendants are shielded by qualified immunity because, at the time of the December 14, 2018 eviction, the Surrogate’s Court had, on December 3, 2018, denied Plaintiff’s application to stay the April Order mandating that the Suffolk County Sheriff evict her. (See ECF No. 74-9.) Furthermore, a week before her eviction, on December 7, 2018, the Appellate Division, Second Department, signed Plaintiff’s Order to Show Cause seeking, inter alia, an expedited hearing on her request to vacate the Surrogate Court’s Order, but did not grant Plaintiff any interim relief and explicitly struck the language in Plaintiff’s submission that requested that Van Zwienen and the Sheriff be retrained from entering the subject premises pending decision on the motion. (See ECF No. 74-10.) See, 11 FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 Case NO. NYSCEF DOC. 2:19-cv-01362-JMA-ARL 68 Document 96 Filed 03/26/21 Page 12RECEIVED of 23 PageID #: 2364 NYSCEF: 05/15/2023 e.g., Tomassi v. Sheehan, No. 15-CV-3605, 2016 WL 4768826, at *7-8 (E.D.N.Y. Aug. 23, 2016), report and recommendation adopted, No. 15-CV-3605, 2016 WL 4767539 (E.D.N.Y. Sept. 13, 2016) (qualified immunity shielded defendants from liability where eviction was effected pursuant to a “facially valid court order that they were required by law to execute”); Tornheim v. Eason, 363 F. Supp. 2d 674, 676-677 (S.D.N.Y. 2005) (“[W]hen a sheriff executes a facially valid court order, he is afforded complete protection from liability . . . for any proper act done in its execution.”) (internal quotation marks and citation omitted). Thus, because the December 14, 2018 eviction of Plaintiff was done in accordance with the state court orders (see ECF Nos. 73-6, 73-10, 74-10), and, in the absence of an order staying the eviction, the individual Suffolk County Defendants are shielded from liability by qualified immunity. Further, absolute quasi-judicial immunity also protects the individual Suffolk County Defendants from liability because they were executing the state court’s facially valid order of eviction, in accordance with their duty to carry out mandates of the court. See, e.g., Tomassi, 2016 WL 4768826, *9 (“As the enforcement arm of the Suffolk County District Court, Defendants are entitled to quasi-judicial immunity for their acts.”); Maldonado v. N.Y. Cnty. Sheriff, No. 05-CV- 8377, 2006 WL 2588911, at *5 (S.D.N.Y. Sept. 6, 2006) (holding that defendants executing a facially valid order of eviction are protected by quasi-judicial immunity). c. Monell Liability Moreover, Plaintiff has not plausibly alleged a Section 1983 claim against Suffolk County. In order to hold a municipal entity liable under Section 1983, a plaintiff must demonstrate that the constitutional violation complained of was caused by a municipal “policy or custom.” Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 694 (1978). A policy, custom, or practice of a municipal entity may be inferred where “‘the municipality so failed to train its employees as to 12 FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 Case NO. NYSCEF DOC. 2:19-cv-01362-JMA-ARL 68 Document 96 Filed 03/26/21 Page 13RECEIVED of 23 PageID #: 2365 NYSCEF: 05/15/2023 display a deliberate indifference to the constitutional rights of those within its jurisdiction.’” Patterson v. Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004) (internal quotation marks and citation omitted)). Here, even if the Amended Complaint plausibly alleged an underlying Fourth or Fourteenth Amendment claim against Suffolk County, which it does not (see infra at 15-16), Plaintiff has not satisfied Monell. In this regard, Plaintiff’s Amended Complaint alleges, in conclusory fashion, that “[s]ince 10/19/2018, defendant Sheriff Toulon has been informed of the eviction issue by plaintiff. Sheriff was fully aware of the issue. He, however, supervised, trained and instructed his deputies to seize plaintiff’s home negligently and did not prevent them from said seizure.” (Am Compl. ¶ 17.) As the record makes abundantly clear, the Suffolk County Defendants effected Plaintiff’s eviction pursuant to a facially valid order of eviction issued by the Surrogate’s Court on April 5, 2018 and a stay of which was denied by both the Surrogate Court on December 3, 2018 and the Appellate Division on December 7, 2018. (See ECF Nos. 73-6, 73-10, 74-10.) d. Fourth Amendment Claim Plaintiff’s underlying Fourth Amendment claim also fails because the entry into (and seizure of) the subject premises by the Sheriff was authorized—and, indeed mandated—by the April Order and subsequent orders issued by the state courts. The April Order explicitly stated “upon being presented with a certified copy of this order and the transcript thereof, the Sheriff of the County of Suffolk shall be and is hereby immediately required to enter upon the premises located at 12 Mallar Avenue, Bay Shore, New York, and eject therefrom Yan Ping Xu . . . and to put petitioner into possession of said premises.” (April Order at 7, ECF 73-6.) Subsequently, Plaintiff failed to provide the undertaking mandated by the Surrogate’s Court in order to obtain a stay. (October 10, 2018 Order, ECF No. 73-9; Dec. 3, 2018 Order, ECF No. 73-10). When 13 FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 Case NO. NYSCEF DOC. 2:19-cv-01362-JMA-ARL 68 Document 96 Filed 03/26/21 Page 14RECEIVED of 23 PageID #: 2366 NYSCEF: 05/15/2023 Plaintiff sought to appeal the Surrogate’s Court, the Appellate Division granted Plaintiff an expedited appearance to hear her request for a preliminary injunction and TRO, (ECF No. 74-10), but granted her no interim injunctive relief and subsequently denied Plaintiff’s requests for such relief on January 15, 2019. (ECF Nos. 73-11, 74-11.) Plaintiff’s citation to Soldal v. Cook Cty., Ill., 506 U.S. 56 (1992) is inapposite. In Soldal, a landlord—who had not yet obtained an order of eviction in state court—allegedly conspired with Sherriff’s deputies to evict the plaintiffs by removing the plaintiffs’ mobile home. Id. at 58-59. The Sheriff’s deputies, who knew the landlord had not obtained an eviction order and knew that the landlord’s actions were unlawful, refused to intervene. Id. at. 59-60. Here, in sharp contrast, the April Order directed the Suffolk County Sheriff to evict Plaintiff from the property and Plaintiff did not obtain a stay of that order. See Soldal, 506 U.S. at 71 (“Assuming, for example, that the officers were acting pursuant to a court order, . . . and as often would be the case, a showing of unreasonableness on these facts would be a laborious task indeed.”). Plaintiff suggests that because the Defendants did not obtain a warrant, under N.Y. Real Property Actions and Proceedings Law (“RPAPL”) § 749, before evicting her, she has a viable Fourth Amendment claim. Plaintiff misapprehends Soldal and the Fourth Amendment. N.Y. RPAPL § 749 states that “[u]pon rendering a final judgment for petitioner, the court shall issue a warrant directed to the sheriff of the county . . . stating the earliest date upon which execution may occur pursuant to the order of the court, and commanding the officer to remove all persons named in the proceeding . . . .” Plaintiff contends that, under New York law, the Surrogate’s Court had to issue a separate warrant of eviction and that the April Order was insufficient. In support, Plaintiff cites a 1921 decision which suggests that the court must issue a separate warrant of eviction. See Rockaway Point Co. v. Friberg, 198 A.D. 923, 923, 189 N.Y.S. 936 (App. Div. 14 FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 Case NO. NYSCEF DOC. 2:19-cv-01362-JMA-ARL 68 Document 96 Filed 03/26/21 Page 15RECEIVED of 23 PageID #: 2367 NYSCEF: 05/15/2023 1921), aff’d, 232 N.Y. 599, 134 N.E. 587 (1922) (“We can find no authority for the attempted combination of the warrant with the final order.”) Plaintiff, however, misapprehends the requirements of a Fourth Amendment claim. Even if Plaintiff were correct and the Surrogate’s Court erred by not issuing a separate warrant of eviction under § RPAPL § 749,5 any such purported violation of state law does not establish a Fourth Amendment violation. The Suffolk County Defendants evicted Plaintiff pursuant to the directive of the April Order. A Fourth Amendment claim is analyzed under a “reasonableness” standard. Soldal, 506 U.S. at 71 (“Reasonableness is . . . the ultimate standard under the Fourth Amendment.”). “To determine whether a seizure is unreasonable, a court must ‘balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interest alleged to justify the intrusion’ and determine whether ‘the totality of the circumstances justified [the] particular sort of . . . seizure.’” Pollok v. Chen, 806 F. App’x 40, 44 (2d Cir. 2020) (summary order) (quoting Carroll v. Cty. of Monroe, 712 F.3d 649, 651 (2d Cir. 2013) (citation omitted)). In Pollack, the Second Circuit recently explained, citing Soldal, that “Fourth Amendment interests - - whether freedom from an unreasonable seizure of the apartment itself or their personal property in the apartment or both - - do not overcome the state’s interest in . . . carrying out orders of the state courts and returning property to its rightful owner.” Pollok, 806 F. App’x at 44; -- see --- also ------------------------- DeSouza v. Park W. Apartments, Inc., No. 15-CV-01668, 2018 WL 2990099, at *17 (D. Conn. June 14, 2018), on reconsideration, No. 15-CV-01668, 2018 WL 4935997 (D. Conn. Oct. 11, 2018) (rejecting Fourth Amendment claim and finding that defendant’s “initiation of lawful eviction proceedings hardly constitutes an unlawful seizure” of plaintiff’s property). 5 It is not clear if Plaintiff ever raised this issue about an eviction warrant in state court. In any event, the Appellate Division refused to stay the April Order, which indicates that Plaintiff’s eviction comported with New York law. 15 FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 Case NO. NYSCEF DOC. 2:19-cv-01362-JMA-ARL 68 Document 96 Filed 03/26/21 Page 16RECEIVED of 23 PageID #: 2368 NYSCEF: 05/15/2023 Plaintiff’s argument conflates the fact that, in some circumstances, the Fourth Amendment requires a warrant for a search or seizure with an alleged requirement under New York law that an eviction warrant is required under N.Y. RPAPL § 749 before a Plaintiff can be evicted. Here, the April Order—which the Appellate Division refused to stay or vacate—directed the Suffolk County Sheriff to evict Plaintiff. Those state court orders preclude Plaintiff’s Fourth Amendment claims.6 e. Due Process Claims Plaintiff also alleges procedural and substantive due process claims under the Fourteenth Amendment. Plaintiff’s procedural due process claim is, at bottom, a claim that her eviction failed to comport, in various respects, with the dictates of New York law. (See Pl.’s Opp’n Br. at 15- 16.) That is insufficient to state a plausible due process claim. “Procedural due process imposes constraints on governmental decisions which deprive individuals of liberty or property interests within the meaning of the Due Process Clause of the . . . Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976) (internal quotation marks omitted). Substantive due process requires plaintiff to show deprivation of a constitutional right under circumstances that were “arbitrary” and “outrageous,” typically as demonstrated by conduct that “shocks the conscience.” See Natale v. Town of Ridgefield, 170 F.3d 258, 262 (2d Cir. 1999) (quoting Rochin v. Cal., 342 U.S. 165, 172 (1952)). Violation of the substantive standards of the Due Process Clause requires “conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental authority.” Natale, 170 F.3d at 259. To prove a procedural due process violation, a plaintiff must demonstrate that (1) she had a constitutionally protected liberty or property interest and (2) she was deprived of that interest 6 As explained earlier, Plaintiffs’ Fourth Amendment claims against the individual Suffolk County Defendants are also precluded by qualified and absolute immunity and she has not plausibly alleged a Monell claim against Suffolk County. 16 FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 Case NO. NYSCEF DOC. 2:19-cv-01362-JMA-ARL 68 Document 96 Filed 03/26/21 Page 17RECEIVED of 23 PageID #: 2369