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FILED: NASSAU COUNTY CLERK 10/08/2020 09:12 AM INDEX NO. 001248/2019
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/08/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
Vester Cain,
Index No. 1248-2019
Plaintiff,
Giacamo, J.S.C.
-against-
AFFIRMATION OF
Thomas A. Adams, HELENA LYNCH
Defendant.
HELENA LYNCH, an attorney duly admitted to practice before this Court, hereby
affirms, under penalty of perjury, the following:
1. I am an Assistant Attorney General in the Office of Letitia James, the New
York State Attorney General.
2. I submit this Affirmation in opposition to Plaintiff’s post-judgment motion
to: vacate this Court’s final Decision and Order dated July 13, 2020; reargue Plaintiff’s
motions for a default judgment and to strike Defendant’s motion to dismiss; and stay
orders in a separate foreclosure litigation.
3. In its July 13, 2020 Decision & Order (“Decision & Order,” true and correct
copy annexed hereto, together with Notice of Entry thereof, as Exhibit 1), this Court
correctly ruled that it lacked personal jurisdiction over Defendant because Plaintiff never
properly served Defendant under any method authorized by the New York Civil Practice
Law and Rules (“CPLR”). The Court also correctly ruled that the allegations in the
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Complaint merely asserted conduct in Defendant’s official capacity as a sitting Justice of
Supreme Court, Nassau County, and Defendant was therefore entitled to judicial
immunity. In addition, the Court has already effectively ruled that it does not have
jurisdiction to stay orders in the foreclosure action.
4. Plaintiff appears to assert his motion to vacate pursuant to CPLR § 5015(a),
which provides for relief from judgment where a movant can show: (1) excusable default;
(2) newly discovered evidence; (3) fraud, misrepresentation, or other misconduct by an
adverse party; (4) lack of jurisdiction to render the judgment; or (5) reversal, modification,
or vacatur of a prior judgment or order upon which the challenged judgment is based.
5. Plaintiff does not allege, much less demonstrate, any of the grounds for
relief set forth in CPLR 5015(a).
6. With respect to the ruling that the Court lacked personal jurisdiction over
Defendant, Plaintiff asserts that he “legally rejects” the Court’s reasoning that Defendant
was not properly served. Notice of Motion at 2. But Plaintiff identifies no legal error in
the Court’s decision, much less any of the grounds set forth in CPLR 5015(a).
7. As the Court ruled, Plaintiff has the burden to prove personal jurisdiction
has been obtained. Decision & Order at 3 (citing e.g., Aurora Loan Servs., LLC v. Gaines, 104
A.D.3d 885 (2d Dep’t 2013)). As the Court also correctly ruled, Plaintiff failed to meet that
burden. Instead, Plaintiff’s affidavit of service proves that personal jurisdiction was never
acquired over Defendant. First, as the Court noted, the Affidavit of Service indicates only
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that service was made of the motion for default judgment, and not of the Summons and
Complaint. See Decision & Order at 3. Second, even if the affidavit of service could be
construed as indicating that service was made of the summons and complaint, as the
Court explained, the affidavit of service does not contain the necessary information
regarding mail service. See id.
8. Plaintiff argues that judicial immunity does not apply because he seeks a
declaratory judgment and not damages. See Notice of Motion at 3. Plaintiff fails to show
how his argument satisfies any of the grounds for relief under CPLR 5015(a), and his
argument is in any event incorrect. The relief Plaintiff seeks is retrospective, not
prospective, and Plaintiff does not plausibly allege that declaratory relief was unavailable
or that Defendant violated a declaratory decree.
9. In 1984, the Supreme Court held that judicial immunity does not necessarily
bar “prospective injunctive relief” against a judicial officer. Pulliam v. Allen, 466 U.S. 522,
541–42 (1984). However, that holding was abrogated by Congress, which further
narrowed the already limited exceptions to judicial immunity.
As the Eighth Circuit explained:
Congress responded to Pulliam in 1996 by amending § 1983 to
abrogate its holding. Section 1983 provides that “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.” In other words, judicial
immunity typically bars claims for prospective injunctive relief against
judicial officials acting in their judicial capacity. Only when a declaratory
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decree is violated or declaratory relief is unavailable would plaintiffs have
an end-run around judicial immunity.
Justice Network Inc. v. Craighead Cty., 931 F.3d 753, 763 (8th Cir. 2019) (quoting 42 U.S.C. §
1983; additional internal quotation marks omitted).
10. Regardless, any exception would be limited to prospective declaratory
relief, but the relief Plaintiff seeks is retrospective. Plaintiff seeks a declaratory judgment
that Defendant’s past conduct in the context of the foreclosure action violated his rights.
This is retrospective relief. See Davis v. Campbell, No. 3:13-cv-0693, 2014 WL 234722, at *9
(N.D.N.Y. Jan. 22, 2014) (ruling that plaintiff who sought “a declaratory judgment that
past actions that occurred in the context of the Family Court proceedings violated her
constitutional rights” was seeking retrospective relief, and claims were barred by judicial
immunity). Plaintiff falls far short of alleging circumstances that would allow him an
“end run” around judicial immunity.
11. Plaintiff identifies no basis to reargue either his motion for a default
judgment or his motion to strike Defendant’s motion to dismiss. CPLR § 2221(d) provides
that a motion for leave to reargue a prior motion “shall be based upon matters of fact or
law allegedly overlooked or misapprehended by the court in determining the prior
motion.” CPLR 2221(d)(2). The Court did not overlook or misapprehend any matter of
fact or law.
12. The Court’s correct ruling that Defendant was never properly served, see
supra, ¶¶ 6, 7, also necessitated denial of Plaintiff’s motion for a default judgment and
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Plaintiff’s motion to “strike,” pursuant to CPLR 3215, Defendant’s motion to dismiss. See,
e.g., Diaz v. Perez, 113 A.D.3d 421, 421 (1st Dep’t 2014) (finding “no basis upon which to
enter a default judgment against” defendant who was never properly served); CPLR
3215(“When a defendant has failed to appear . . . the plaintiff may seek a default judgment
against him.”).
13. With respect to his motion for a stay of orders in the foreclosure action,
Plaintiff seeks relief that this Court has already effectively denied. In its Decision & Order
dated March 11, 2020, on Plaintiff’s motion to restrain Defendant from continuing to
preside over the foreclosure matter, this Court ruled that it did not have jurisdiction to
“restrain another Supreme Court Justice from presiding over a matter.” Decision & Order
(March 11, 2020), true and correct copy annexed hereto as Exhibit 2. The Court also noted
that Plaintiff was enjoined from filing further motions in the foreclosure matter and that
his “proper remedy” in that matter “is to appeal from those orders or to seek a stay from
the Appellate Division, Second Department.”
14. As is clear from the Court’s March 11, 2020 Decision & Order, see Ex. 2, the
Court does not have jurisdiction to stay orders in the foreclosure action.
15. Defendant respectfully requests that the Court take judicial notice of the
numerous nearly identical actions filed by Plaintiff and his power of attorney against
judges and court staff. Plaintiff’s power of attorney has filed several actions in both his
own name and in Plaintiff’s name.
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16. Plaintiff is currently the named Plaintiff in four actions in the courts of this
state against judges and court staff. Aside from this matter and Cain v. Giacomo, Index No.
54067/2020, there is also Cain v. Harkins [Chief Clerk, Nassau Supreme Court], Index No.
145/2020, and the recently filed Cain v. Adams, Index No. 502/2020 (“Cain v. Adams II”),
which is a carbon copy of this matter (with the addition of a single paragraph). In his
response in Cain v, Adams II, Defendant has moved for a filing injunction against Plaintiff.
See Cain v. Adams II, Index No. 502/2020, Doc. Nos. 3, 4, 5. In the alternative Defendant is
requesting an inquiry into the validity of the power of attorney. Id., Doc. No. 4 at ¶¶ 32-
33; Doc. No. 5 at 12-13.
17. Plaintiff’s power of attorney currently has two actions in state court against
judges: Rolle v. Paradiso, Index No. 251/2020, and Rolle v. Fischer, Index No. 491/2020. Mr.
Rolle has a history of filing actions deemed frivolous in federal court. See, e.g., See Rolle v.
Shields, No. 16 Civ. 2487, 2016 WL 3093898, at *2 (E.D.N.Y. June 1, 2016). In the response
in Rolle v. Paradiso, the defendant moved for a filing injunction against plaintiff’s power
of attorney. See Index No. 251/2020, Doc Nos. 3, 4, 5. Plaintiff’s power of attorney is
currently enjoined from further filings in federal court. See Doc. No. 4 at ¶¶ 32-33; Doc.
No. 5 at 12-13.
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WHEREFORE, I respectfully request that the Court deny Plaintiff’s post-judgment
motion and grant such other and further relief that the Court deems just and equitable.
Dated: Mineola, New York
October 8, 2020
By: /s Helena Lynch
Helena Lynch
Assistant Attorney General, of Counsel
Tel.: (516) 248-3312
Helena.lynch@ag.ny.gov
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Preview
FILED: NASSAU COUNTY CLERK 10/08/2020 09:12 AM INDEX NO. 001248/2019 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/08/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Vester Cain, Index No. 1248-2019 Plaintiff, Giacamo, J.S.C. -against- AFFIRMATION OF Thomas A. Adams, HELENA LYNCH Defendant. HELENA LYNCH, an attorney duly admitted to practice before this Court, hereby affirms, under penalty of perjury, the following: 1. I am an Assistant Attorney General in the Office of Letitia James, the New York State Attorney General. 2. I submit this Affirmation in opposition to Plaintiff’s post-judgment motion to: vacate this Court’s final Decision and Order dated July 13, 2020; reargue Plaintiff’s motions for a default judgment and to strike Defendant’s motion to dismiss; and stay orders in a separate foreclosure litigation. 3. In its July 13, 2020 Decision & Order (“Decision & Order,” true and correct copy annexed hereto, together with Notice of Entry thereof, as Exhibit 1), this Court correctly ruled that it lacked personal jurisdiction over Defendant because Plaintiff never properly served Defendant under any method authorized by the New York Civil Practice Law and Rules (“CPLR”). The Court also correctly ruled that the allegations in the 1 1 of 7 FILED: NASSAU COUNTY CLERK 10/08/2020 09:12 AM INDEX NO. 001248/2019 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/08/2020 Complaint merely asserted conduct in Defendant’s official capacity as a sitting Justice of Supreme Court, Nassau County, and Defendant was therefore entitled to judicial immunity. In addition, the Court has already effectively ruled that it does not have jurisdiction to stay orders in the foreclosure action. 4. Plaintiff appears to assert his motion to vacate pursuant to CPLR § 5015(a), which provides for relief from judgment where a movant can show: (1) excusable default; (2) newly discovered evidence; (3) fraud, misrepresentation, or other misconduct by an adverse party; (4) lack of jurisdiction to render the judgment; or (5) reversal, modification, or vacatur of a prior judgment or order upon which the challenged judgment is based. 5. Plaintiff does not allege, much less demonstrate, any of the grounds for relief set forth in CPLR 5015(a). 6. With respect to the ruling that the Court lacked personal jurisdiction over Defendant, Plaintiff asserts that he “legally rejects” the Court’s reasoning that Defendant was not properly served. Notice of Motion at 2. But Plaintiff identifies no legal error in the Court’s decision, much less any of the grounds set forth in CPLR 5015(a). 7. As the Court ruled, Plaintiff has the burden to prove personal jurisdiction has been obtained. Decision & Order at 3 (citing e.g., Aurora Loan Servs., LLC v. Gaines, 104 A.D.3d 885 (2d Dep’t 2013)). As the Court also correctly ruled, Plaintiff failed to meet that burden. Instead, Plaintiff’s affidavit of service proves that personal jurisdiction was never acquired over Defendant. First, as the Court noted, the Affidavit of Service indicates only 2 2 of 7 FILED: NASSAU COUNTY CLERK 10/08/2020 09:12 AM INDEX NO. 001248/2019 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/08/2020 that service was made of the motion for default judgment, and not of the Summons and Complaint. See Decision & Order at 3. Second, even if the affidavit of service could be construed as indicating that service was made of the summons and complaint, as the Court explained, the affidavit of service does not contain the necessary information regarding mail service. See id. 8. Plaintiff argues that judicial immunity does not apply because he seeks a declaratory judgment and not damages. See Notice of Motion at 3. Plaintiff fails to show how his argument satisfies any of the grounds for relief under CPLR 5015(a), and his argument is in any event incorrect. The relief Plaintiff seeks is retrospective, not prospective, and Plaintiff does not plausibly allege that declaratory relief was unavailable or that Defendant violated a declaratory decree. 9. In 1984, the Supreme Court held that judicial immunity does not necessarily bar “prospective injunctive relief” against a judicial officer. Pulliam v. Allen, 466 U.S. 522, 541–42 (1984). However, that holding was abrogated by Congress, which further narrowed the already limited exceptions to judicial immunity. As the Eighth Circuit explained: Congress responded to Pulliam in 1996 by amending § 1983 to abrogate its holding. Section 1983 provides that “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.” In other words, judicial immunity typically bars claims for prospective injunctive relief against judicial officials acting in their judicial capacity. Only when a declaratory 3 3 of 7 FILED: NASSAU COUNTY CLERK 10/08/2020 09:12 AM INDEX NO. 001248/2019 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/08/2020 decree is violated or declaratory relief is unavailable would plaintiffs have an end-run around judicial immunity. Justice Network Inc. v. Craighead Cty., 931 F.3d 753, 763 (8th Cir. 2019) (quoting 42 U.S.C. § 1983; additional internal quotation marks omitted). 10. Regardless, any exception would be limited to prospective declaratory relief, but the relief Plaintiff seeks is retrospective. Plaintiff seeks a declaratory judgment that Defendant’s past conduct in the context of the foreclosure action violated his rights. This is retrospective relief. See Davis v. Campbell, No. 3:13-cv-0693, 2014 WL 234722, at *9 (N.D.N.Y. Jan. 22, 2014) (ruling that plaintiff who sought “a declaratory judgment that past actions that occurred in the context of the Family Court proceedings violated her constitutional rights” was seeking retrospective relief, and claims were barred by judicial immunity). Plaintiff falls far short of alleging circumstances that would allow him an “end run” around judicial immunity. 11. Plaintiff identifies no basis to reargue either his motion for a default judgment or his motion to strike Defendant’s motion to dismiss. CPLR § 2221(d) provides that a motion for leave to reargue a prior motion “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion.” CPLR 2221(d)(2). The Court did not overlook or misapprehend any matter of fact or law. 12. The Court’s correct ruling that Defendant was never properly served, see supra, ¶¶ 6, 7, also necessitated denial of Plaintiff’s motion for a default judgment and 4 4 of 7 FILED: NASSAU COUNTY CLERK 10/08/2020 09:12 AM INDEX NO. 001248/2019 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/08/2020 Plaintiff’s motion to “strike,” pursuant to CPLR 3215, Defendant’s motion to dismiss. See, e.g., Diaz v. Perez, 113 A.D.3d 421, 421 (1st Dep’t 2014) (finding “no basis upon which to enter a default judgment against” defendant who was never properly served); CPLR 3215(“When a defendant has failed to appear . . . the plaintiff may seek a default judgment against him.”). 13. With respect to his motion for a stay of orders in the foreclosure action, Plaintiff seeks relief that this Court has already effectively denied. In its Decision & Order dated March 11, 2020, on Plaintiff’s motion to restrain Defendant from continuing to preside over the foreclosure matter, this Court ruled that it did not have jurisdiction to “restrain another Supreme Court Justice from presiding over a matter.” Decision & Order (March 11, 2020), true and correct copy annexed hereto as Exhibit 2. The Court also noted that Plaintiff was enjoined from filing further motions in the foreclosure matter and that his “proper remedy” in that matter “is to appeal from those orders or to seek a stay from the Appellate Division, Second Department.” 14. As is clear from the Court’s March 11, 2020 Decision & Order, see Ex. 2, the Court does not have jurisdiction to stay orders in the foreclosure action. 15. Defendant respectfully requests that the Court take judicial notice of the numerous nearly identical actions filed by Plaintiff and his power of attorney against judges and court staff. Plaintiff’s power of attorney has filed several actions in both his own name and in Plaintiff’s name. 5 5 of 7 FILED: NASSAU COUNTY CLERK 10/08/2020 09:12 AM INDEX NO. 001248/2019 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/08/2020 16. Plaintiff is currently the named Plaintiff in four actions in the courts of this state against judges and court staff. Aside from this matter and Cain v. Giacomo, Index No. 54067/2020, there is also Cain v. Harkins [Chief Clerk, Nassau Supreme Court], Index No. 145/2020, and the recently filed Cain v. Adams, Index No. 502/2020 (“Cain v. Adams II”), which is a carbon copy of this matter (with the addition of a single paragraph). In his response in Cain v, Adams II, Defendant has moved for a filing injunction against Plaintiff. See Cain v. Adams II, Index No. 502/2020, Doc. Nos. 3, 4, 5. In the alternative Defendant is requesting an inquiry into the validity of the power of attorney. Id., Doc. No. 4 at ¶¶ 32- 33; Doc. No. 5 at 12-13. 17. Plaintiff’s power of attorney currently has two actions in state court against judges: Rolle v. Paradiso, Index No. 251/2020, and Rolle v. Fischer, Index No. 491/2020. Mr. Rolle has a history of filing actions deemed frivolous in federal court. See, e.g., See Rolle v. Shields, No. 16 Civ. 2487, 2016 WL 3093898, at *2 (E.D.N.Y. June 1, 2016). In the response in Rolle v. Paradiso, the defendant moved for a filing injunction against plaintiff’s power of attorney. See Index No. 251/2020, Doc Nos. 3, 4, 5. Plaintiff’s power of attorney is currently enjoined from further filings in federal court. See Doc. No. 4 at ¶¶ 32-33; Doc. No. 5 at 12-13. 6 6 of 7 FILED: NASSAU COUNTY CLERK 10/08/2020 09:12 AM INDEX NO. 001248/2019 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/08/2020 WHEREFORE, I respectfully request that the Court deny Plaintiff’s post-judgment motion and grant such other and further relief that the Court deems just and equitable. Dated: Mineola, New York October 8, 2020 By: /s Helena Lynch Helena Lynch Assistant Attorney General, of Counsel Tel.: (516) 248-3312 Helena.lynch@ag.ny.gov 7 7 of 7