Because the Appellate Term's judgment has no bearing on these arguments or Judge Orenstein's independent finding that RPAPL § 711, NYRPL § 228, and N.Y. City Admin. Code § 26-521 do not confer a cognizable property interest on plaintiff, a different outcome is not warranted. Indeed, plaintiff's reliance on this court's ruling in Pelt v. City of New York, No. 11-CV-5633, 2013 WL 4647500 (E.D.N.Y. Aug. 28, 2013), for the proposition that RPAPL § 711 conveys a property interest is entirely misplaced. (Pl.
Id. It is true that, “[u]nder New York law, it is well settled that a licensee acquires no possessory interest in property.” Pelt v. City of New York, No. 11-cv-5633 (KAM) (CLP), 2013 WL 4647500, at *8 (E.D.N.Y. Aug. 28, 2013) (internal quotation marks omitted). However, the question of whether McCrae was a mere licensee or squatter - or whether he held a valid lease to rent the home from the homeowner - is exactly what is disputed.
Those state court proceedings will likely provide him with an adequate remedy to challenge his eviction, as predeprivation proceedings in state court generally provide adequate process, and a plaintiff evicted pursuant to such proceedings cannot allege that he was deprived of his property without due process. See, e.g., Stern v. Regency Towers, LLC, 886 F.Supp.2d 317, 324 (S.D.N.Y. 2012) (noting that a warrant of eviction will issue “only after lengthy state court proceedings in which [a plaintiff is] given ample opportunity to contest . . . the legality of his eviction”); see also Pelt v. City of New York, No. 11-CV-5633, 2013 WL 4647500, at *12 (E.D.N.Y. Aug. 28, 2013) (availability of range of process under New York law to challenge eviction “more than protect[s] against an erroneous deprivation”).
The Court will first consider whether Plaintiff has alleged sufficient facts to establish his status as a licensee or tenant, as the category he falls within is dispositive of whether he has a property interest in the Residence. See Pelt v. City of N.Y., No. 11-CV-5633, 2013 WL 4647500, at *8-9 (E.D.N.Y. Aug. 28, 2013) (“Under New York law, it is well settled that a licensee acquires no possessory interest in property.” (citation and quotation marks omitted)
insofar as the [m]ere threatening language and gestures . . . do not, even if true, amount to constitutional violations.” Pelt v. City of New York, No. 11 Civ. 5633 (KAM) (CLP), 2013 WL 4647500, at *13 (E.D.N.Y. Aug. 28, 2013) (internal quotation marks omitted); Ottley v. Proietti, No. 20 Civ. 2861 (RPK) (LB), 2022 WL 4586303,
Courts may grant motions to dismiss an excessive force claim where the force used was objectively reasonable as a matter of law. See Pelt v. City of New York, No. 11-cv-5633, 2013 WL 4647500, at *13 (E.D.N.Y. Aug. 28, 2013) (dismissing excessive force claim where plaintiff alleged only that officers made verbal threats, which fails to support an excessive force claim). However, “courts are rarely able to assess the reasonableness of the force used at the motion to dismiss stage.”
“Because Plaintiff alleges nothing beyond mere threats of force, [any] excessive force claim [would] fail[].” Pelt v. City of New York, No. 11-CV-5633, 2013 WL 4647500, at *13 (E.D.N.Y. Aug. 28, 2013) (“[T]hreat[s] of force . . . do [ ] not support an excessive force claim.”)
These allegations support a finding that Defendant's alleged actions were random and unauthorized and, therefore, that a post-deprivation hearing is all that was required. See Dekom v. Nassau County, 595 Fed.Appx. 12, 14 (2d Cir. 2014) (summary order) (holding that a post-deprivation hearing was sufficient where the plaintiff alleged that the defendants' actions violated New York law and local political party policies and procedures, rendering them “random and unauthorized”); Palmer v. City of New York, 564 F.Supp.3d 221, 248 (E.D.N.Y. 2021) (holding that allegations that the removal of plaintiffs from their home was “unlawful” and in contravention of state court orders established, for purposes of a motion to dismiss, that the defendants' alleged misconduct was random and unauthorized); Pelt v. City of New York, No. 11-cv-5633 (KAM) (CLP), 2013 WL 4647500, at *11-12 (E.D.N.Y. Aug. 28, 2013) (holding that allegations that defendants unlawfully evicted the plaintiff and flouted state court notice procedures were appropriately characterized as alleging random and unauthorized acts, such that a post-deprivation hearing satisfied due process requirements)
Where no force is used, of course, no excessive force exists. See, e.g., Sherman v. Platosh, No. 3:15-CV-352 (MPS), 2017 WL 969263, at *3 (D. Conn. Mar. 13, 2017) (citing Pelt v. City of N.Y., No. 11-CV-5633 (KAM) (CLP), 2013 WL 4647500, at *14 (E.D.N.Y. Aug. 28, 2013)). Because the account in Officer Proietti's Rule 56.1 statement has not been disputed in any countervailing Rule 56.1 statement or response
Although Moving Defendants have asserted their Rooker-Feldman and Younger doctrine defenses in their 12(c) motions, “the appropriate vehicle” for such defenses is in a “Rule 12(b)(1) motion.” Pelt v. City of New York, No. 11-CV-5633 (KAM) (CLP), 2013 WL 4647500, at *4 n. 6 (E.D.N.Y. Aug. 28, 2013); see Wilmington Tr., Nat'l Ass'n v. Est. of McClendon, 287 F.Supp.3d 353, 360 (S.D.N.Y. 2018); see also Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.”)