Opinion
00 CV 6305
March 12, 2001
TERRY ROBINSON, DARLENE ROBINSON, Brooklyn, NY, plaintiff pro se, Brooklyn, NY, plaintiff pro se.
MEMORANDUM AND ORDER
Plaintiffs seek by order to show cause to enjoin their eviction from a cooperative apartment owned by defendant Lindsay Park Housing Corp. They also applied for leave to proceed in forma pauperis in this action.
Plaintiffs claims relate to their eviction from an apartment owned by Lindsay Park, a publicly assisted housing development corporation, and managed by Zenith, a private corporation. Plaintiff Terry Robinson is plaintiff Darlene Robinson's mother. Both claim they resided with Terry Robinson's grandmother, Margaret Fleming, who was a tenant in the apartment prior to her death in 1996. Plaintiffs seek money damages for the eviction and damage they allege was done to their property during the eviction. They also seek to succeed to Mrs. Fleming's rights to tenancy in the apartment.
Plaintiffs succession rights were the subject of at least two applications to the New York City Department of Housing Preservation and Development, both denying the plaintiffs succession rights. Plaintiff Darlene Robinson challenged the Department's determination in a proceeding under Article 78 of the CPLR. Before that application was brought, the New York Civil Court, Housing Part, issued an order of eviction, but that order was stayed as to Darlene Robinson pending her Article 78 proceeding.
Plaintiffs retained and fired a lawyer for the Article 78 proceeding whom they allege failed to advise them of court appearances, made procedural errors and caused a warrant of eviction to issue when he failed to appear. Plaintiffs attempted by order to show cause to vacate the warrant of eviction, but their motion was denied by the Housing Court on October 10, 2000. The Housing Court barred plaintiffs from filing any further order to show cause, and assessed $40 costs against them. Plaintiffs were evicted from the apartment on October 12, 2000.
Plaintiffs claim that the denial by defendants of succession rights to the apartment and the eviction constituted a violation of their constitutional rights under the due process and equal protection clauses of the Fourteenth Amendment and of their federal rights under the Housing Act of 1937, 42 U.S.C.A. § 1437 et seq. .
Plaintiffs also allege in the Order to Show cause, but not the complaint, that the Department failed to grant plaintiff Darlene Robinson a separate eviction hearing from that given her mother. Plaintiffs further claim that the warrant of eviction was defective because it did not name Darlene Robinson, and that the state courts denied them due process.
Plaintiffs also make claims regarding their property rights, that the co-operative overcharged them and improperly converted the equity from shares in the co-operative which Terry Robinson inherited from her grandmother. They also allege that defendant Zenith denied them access to their property and damaged it. Plaintiffs also allege that the manager of the building pressured Terry Robinson under threat of immediate eviction into signing a document acknowledging that she had not lived in the subject apartment before 1995, a fact which contributed to the defeat of her succession claims.
In a Report and Recommendation dated January 11, 2001, Magistrate Judge Marilyn D. Go recommended that plaintiffs' application for leave to proceed in forma pauperis be denied because plaintiff Terry Robinson has not satisfied the minimum threshold requirement that she submit an affidavit that she is unable to pay court costs.
Magistrate Judge Go recommended that the request for preliminary injunctive relief be denied, and that the constitutional claims be dismissed for lack of subject matter jurisdiction under the Rooker-Feldman doctrine, which provides that only the Supreme Court of the United States has federal jurisdiction to review state court judgments. Both plaintiffs had ample opportunity to litigate their claims and receive a full de novo review of the issues before the Department in state housing court. The Magistrate Judge found that Plaintiffs' constitutional claims against Lindsay Park and Zenith, both private corporations, were without merit because they failed to allege that these entities are state actors.
Further, Plaintiffs have not alleged that they are themselves beneficiaries of federal subsidies granted under Section 8 of the United States Housing Act of 1937, 42 U.S.C. § 1437a(d)(3) and 1437 a(f) (2) . If they are in fact beneficiaries under Section 8, they could amend their complaint to argue that a more flexible standard for succession be applied to them, even in private housing. Thus Magistrate Judge Go recommended that the complaint be dismissed with leave to file an amended complaint and either pay the filing fees or file a new in forma pauperis application, within thirty days.
Plaintiffs sent the Court a letter dated January 29, 2001, which the Court construes as objections to the Report and Recommendation. Fed.R.Civ. p. 72(b) provides that when a party timely files specific written objections to the report and recommendation of a magistrate judge on a dispositive motion,
The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence of any portion of the magistrate judge's disposition to which specific written objection is made in accordance with this rule. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.
Plaintiffs' letter merely restates the claims and arguments in their order to show cause. They have submitted no further evidence or principle of law in contravention of the Magistrate Judge's finding that this court cannot exercise jurisdiction over these claims pursuant to the Rooker-Feldman doctrine. Nor have they submitted any documentation or argument that would support their application for leave to proceed in forma pauperis.
The court approves and adopts the Report and Recommendation. Plaintiff is granted leave to file an amended complaint and either pay filing fees or file a new in forma pauperis application, no later than thirty days from the date of this Order.
So ordered.