11-1921

Remy v. N.Y.S. Dep’t of Taxation

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER

FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

1 At a stated term of the United States Court of Appeals for

2 the Second Circuit, held at the Daniel Patrick Moynihan United

3 States Courthouse, 500 Pearl Street, in the City of New York, on

the 3rd 4 day of January, two thousand thirteen.

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 RALPH K. WINTER,

10 GUIDO CALABRESI,

11 Circuit Judges.

12 _____________________________________

13

14 Lesly Remy,

15

16 Plaintiff-Appellant,

17

18 v. 11-1921

19

20 New York State Department of

21 Taxation and Finance, New York

22 State Office of Temporary and

23 Disability Assistance, New York

24 State Office Children and Family

25 Services, New York City Office of

26 Child Support Enforcement, AKA SCU

27 a subdivision of NYC Human

28 Resources Administration, New York

29 City Employee Retirement Services,

30 Support Magistrates, New York State

31 Clerk of Court, New York City Fire

32 Dept EMS Paramedic John Doe number
2

1 1, a sub division, S. Michael

2 Fondocaro, Joette Blaustein, George

3 Cafasso, Ira Steinberg, Robert L.

4 Megna, David Hansell, Gladys

5 Carrion, Francis Pardu Abbadessa,

6 Diane D'Alessandro, Peter

7 Passidomo, Esq., John Aman, C.

8 Duncan Kerr, Jaynee Wall, L.

9 Bishop, Robert Doar, Sawatar Singh,

10 Phil Ramos, New York State Assembly

11 Member, Michele Titus, New York

12 State Assembly Member, Vivian Cook,

13 New York State Assembly Member,

14 Gloria D'Amico, David Patterson,

15 Governor, Michael Bloomberg, Mayor,

16 City of New York, State of New

17 York, Debra Barticheck, New York

18 State Court Officer, Maria Cooper,

19 Miles Mckenna, James Drakos, Joseph

20 Guzzardo, et al., Fred Beneri,

21

22 Defendants-Appellees

23

24 Commissioners, Directors, Chiefs, 

25 Captain John Doe number 1, 

26 New York State Court Officer, New 

27 York State Court Officers John/Jane 

28 Doe 1, 2, 3, 4, 

29

30 Defendants.

31 _____________________________________

32

33 FOR PLAINTIFF-APPELLANT: Lesly Remy, pro se, Brentwood, NY.

34

35 FOR DEFENDANTS-APPELLEES: Michael A. Cardozo, Corporation

36 Counsel for the City of New York,

37 Paul Rephen, Inga Van Eysden, of

38 Counsel, New York, NY, for the New

39 York City Defendants-Appellees. 

40

41 Eric T. Schneiderman, Attorney

42 General of the State of New York;

43 Barbara D. Underwood, Solicitor

44 General; Michael S. Belohlavek,

45 Senior Counsel; Patrick J. Walsh,

46 Assistant Solicitor General of

47 Counsel, New York, NY, for the New

48 York State Defendants-Appellees. 
3

1

2 Appeal from the September 29, 2010, and April 26, 2011,

3 orders of the United States District Court for the Eastern

4 District of New York (Feuerstein, J.).

5 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

6 DECREED that the judgment of the district court is AFFIRMED. 

7 Plaintiff-Appellant Lesly Remy, proceeding pro se, appeals

8 from the district court’s judgment partially granting the

9 defendants’s motions to dismiss various claims for lack of

10 jurisdiction and for failure to state a claim. We assume the

11 parties’s familiarity with the underlying facts, the procedural

12 history of the case, and the issues on appeal.

13 As a preliminary matter, although Remy raises challenges to

14 the district court’s November 2011 order granting summary

15 judgment, we lack jurisdiction to consider them because he did

16 not file a separate notice of appeal following entry of that

17 order. See Shrader v. CSX Transp. Inc., 70 F.3d 255, 256 (2d

18 Cir. 1995) (where a notice of appeal “fail[s] to mention” a

19 specific order, we are “bar[red] from considering” an appellate

20 challenge to it). We limit our review to Remy’s appeal from the

21 district court’s September 2010 order dismissing the complaint

22 against all parties except the court officers, and April 2011

23 order denying his motion for reconsideration.

24
4

1 “A challenge under the Rooker–Feldman doctrine is for lack

2 of subject matter jurisdiction.” Moccio v. N.Y. State Office of

3 Court Admin., 95 F.3d 195, 198 (2d Cir. 2002). In evaluating the

4 dismissal of a complaint for lack of subject matter jurisdiction

5 under Federal Rule of Civil Procedure 12(b)(1) and for failure to

6 state a claim under Rule 12(b)(6), we review a district court’s

7 factual findings for clear error and its legal conclusions de

8 novo, construing the complaint liberally, accepting all factual

9 allegations therein as true, and drawing all reasonable

10 inferences in plaintiff’s favor. See Morrison v. Nat’l Austl.

11 Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (Rule 12(b)(1));

12 Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002)

13 (Rule 12(b)(6)). In adjudicating a motion to dismiss for lack of

14 subject matter jurisdiction under Rule 12(b)(1), courts may

15 consider “evidence outside the pleadings.” Makarova v. United

16 States, 201 F.3d 110, 113 (2d Cir. 2000). 

17 Remy’s protestations about the district court’s application

18 of the Rooker-Feldman doctrine are not persuasive. 

19 “Rooker–Feldman directs federal courts to abstain from

20 considering claims when four requirements are met: (1) the

21 plaintiff lost in state court, (2) the plaintiff complains of

22 injuries caused by the state court judgment, (3) the plaintiff

23 invites district court review of that judgment, and (4) the state

24 court judgment was entered before the plaintiff's federal suit
1 For example, Remy argues that a state memorandum decision

“denied [him] the equity of NYS Family Law [and] Domestic

Relations Law in the area of [p]arental visitation.”

5

1 commenced.” McKithen v. Brown, 626 F.3d 143, 154 (2d Cir. 2010). 

2 Here, contrary to Remy’s assertions, the record shows that he

3 lost repeatedly in state court. See, e.g., Matter of Remy v.

4 Mitchell, 60 A.D.3d 860, rearg. denied and lv. denied, 2009 N.Y.

5 Slip Op. 73279 (2d Dep’t 2009) (dismissing Remy’s appeal from an

6 order of the Family Court, Queens County, which fixed his child

7 support arrears in the amount of $5,691.13). Remy is incorrect

8 that his losses were merely administrative or ministerial and

9 therefore outside the ambit of Rooker-Feldman. The Family

10 Court’s arrears order was an entirely sufficient judicial loss

11 because Remy had a full and fair opportunity to litigate that

12 issue. See Phifer v. City of New York, 289 F.3d 49, 57 (2d Cir.

13 1996) (“This court may not review the family court's

14 determinations regarding custody, neglect and visitation, as

15 those issues were decided by the family court after providing

16 [the plaintiff] a full and fair opportunity to litigate those

17 issues.”). 

18 Remy’s federal complaint seeks direct review of prior state

court judgments.1 19 Thus, under Rooker-Feldman, this court does

20 not have subject matter jurisdiction to disturb his state court

21 judgments. The district court’s partial dismissal of his

22 complaint was therefore appropriate. 
6

1 We have considered Remy’s remaining arguments on appeal and

2 have found them to be without merit. Accordingly, the judgment

3 of the district court is hereby AFFIRMED.

4

5 FOR THE COURT: 

6 Catherine O’Hagan Wolfe, Clerk

7

8