1 

17-2767 

Vayani v. Pohani

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 ASUMMARY 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 the Second 

2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 7th 3 day of June, two thousand eighteen. 

4 

5 PRESENT: 

6 ROSEMARY S. POOLER,

7 RAYMOND J. LOHIER, JR., 

8 Circuit Judges, 

9 RICHARD J. SULLIVAN,*

10 District Judge. 

11 __________________________________________ 

12 

13 Abdul Khaliq Vayani, Security Guard, 146 West 

14 29th Street Owners Corporation, 

15 

16 Plaintiff-Appellant, 

17 

18 v. 17-2767 

19 

20 146 West 29th Street Owners Corporation, Berik 

21 Management, Managing 146 Building, President 

22 Rikin Sheth, Berik Management, Geeta Pathak, 

23 Former Accountant Verik Management, Local 

24 Union 32BJ SEIU, Michael Fishman, Union 

25 Trustees for all benefit funds: Former Chairman 

26 of the Building Service 32BJ Benefit Funds, 

 

* Judge Richard J. Sullivan, of the United States District Court for the Southern District of New York, 

sitting by designation.
2 

1 Former President Trustee Local Union 32BJ and 

2 Present Vice President SEIU Washington, 

3 Hector J. Figueroa, Union Trustees for all 

4 benefit funds: President and former Secretary 

5 Treasurer, Local 32 BJ, SEIU President and 

6 Trustee Local Union 32 BJ, SEIU, Todd Jenning, 

7 Officer Union 32BJ, Denis Johnston, Vice 

8 President Union 32BJ, Mike Graham, Officer 

9 Union 32BJ, Thomas Giordano, Officer Union 

10 32BJ, Address: 25 West 18th St., New York, NY 

11 10011, Howard I. Rothschild, Employer Trustees 

12 for all benefit funds: Secretary of the Building 

13 Service 32BJ Benefit Funds and President of the 

14 Realty Advisory Board of Labor Relations, Inc., 

15 John Santora, Employer Trustees for all Benefit 

16 Funds: Chief Operating Officer and Executive 

17 Vice President, Asset Services, Cushman & 

18 Wakefiled, Inc., Charles Dorego, Esq. Employer 

19 Trustees for All Benefit Funds: General Counsel, 

20 Glenwood Management, Ward Fred, Employer 

21 Trustees for all benefit funds: Vice President for 

22 Labor Relations, One Source, Michael P. 

23 Fishman, Union Trustees for all benefit funds: 

24 Former Chairman of the Building Service 32BJ 

25 Benefit Funds and Former President of Local 32 

26 BJ, SEIU Washington, Kevin J. Doyle, Union 

27 Trustees for all benefit funds: Executive Vice 

28 President, Local 32 BJ, SEIU, Brian Lambert, 

29 Additional Union Trustees: Health Fund: Vice 

30 President, Local 32 BJ SEIU, Kyle Bragg, 

31 Additional Union Trustees: Pension Fund: Vice 

32 President, Local 32 BJ, SEIU, Larry Engelstein, 

33 Additional Union Trustees: SRSP: Assistant to 

34 the President, Local 32BJ, SEIU, John Pagnotta, 

35 Additional Union Trustees: Shortman Fund, 

36 District leader, Local 32BJ, SEIU, Lenore 

37 Friedlaender, Additional Union Trustees: Legal 

38 Fund: Vice President, Local 32BJ, SEIU, Susan 

39 Cowell, Executive Director, Building Service 

40 32BJ, 25 West 18 Street, New York, NY 

41 10011-1991, Regine Breton, Building Service 

42 32BJ Benefit Funds Administrators Fund 

43 Directors: Pension Fund and SRSP, Angelo 

44 Dascoli, Building Service 32BJ Benefit Funds 
3 

1 Administrators Fund Directors: Health Fund, 

2 Linda Nelson, Building Service 32BJ Benefit 

3 Funds Administrators Fund Directors: 

4 Shortman Fund, Alan Snyder, Building Service 

5 32BJ Benefit Funds Administrators Fund 

6 Directors: Legal Fund, 

7 

8 Defendants-Appellees, 

9 

10 Tim Rockholt, Service Employment 

11 International Union SEIU Washington, Michael 

12 Geffner, Union 32 BJ Counsels, RAAB Sturm, 

13 Goldman & Ganchrow, LLP, Joseph Labuda 

14 Counsel 146 West Building and Berik 

15 Management, Milman Labuda Law Group 

16 PLLC, Mevani West Side Stores Owner, 

17 Chandru Hasso, Michael Prezzels, Rakhani, 

18 Kishan Advani, Jay Kapadia, Saman Kukreja, 

19 Sanjay Kukreja, Jal Bilmoria, Keshab Raj 

20 Seadie, Shamina Khan, Chandru Jotwani, 

21 Sanjay Grover, Manu Pohani, Nari Pohani, 

22 

23 Defendants. 

24 __________________________________________ 

25 

26 

27 FOR PLAINTIFF-APPELLANT: Abdul K. Vayani, pro se, Avenel, N.J. 

28 

29 FOR DEFENDANTS-APPELLEES: 

30 

31 SERV. EMPS. INT’L UNION, ET AL. Walter M. Meginniss, Jr., Gladstein, Reif & 

32 Meginniss, LLP (Olivia Singer, Office of the 

33 General Counsel, SEIU Local 32BJ, on the 

34 brief), New York, N.Y. 

35 

36 HECTOR J. FIGUEROA, ET AL. Ira A. Sturm, Raab, Sturm & Ganchrow, 

37 LLP, Fort Lee, N.J. 

38 

39 

40 146 W. 29TH ST. OWNERS CORP., ET AL. Meredith Cavallaro, Paduano & Weintraub 

41 LLP, New York, N.Y. 

42 
4 

1 Appeal from a judgment of the United States District Court for the Southern District of 

2 New York (Koeltl, J.). 

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

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

5 Appellant Abdul Vayani, proceeding pro se, appeals from the district court’s judgment 

6 dismissing his complaint. Vayani sued his employer, a union that represented its employees, 

7 and various managers, employees, trustees, and administrators of the employer, the union, and 

8 the union’s benefit funds (“the Funds”). He alleged principally that the defendants had 

9 conspired to prevent him from joining the union and thereby obtaining certain benefits. The 

10 defendants moved to dismiss. Because the Funds defendants submitted documents outside the 

11 pleadings with their motion to dismiss, the district court converted their motion into a motion for 

12 summary judgment. The district court then granted the defendants’ motions to dismiss and for 

13 summary judgment, reasoning that each of Vayani’s claims was either time barred or collaterally 

14 estopped by a 2010 arbitration determination that Vayani was not a union member. Vayani 

15 appeals. We assume the parties’ familiarity with the underlying facts, the procedural history of 

16 the case, and the issues on appeal. 

17 “We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), 

18 construing the complaint liberally, accepting all factual allegations in the complaint as true, and 

19 drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282 

20 F.3d 147, 152 (2d Cir. 2002). We review a district court’s grant of summary judgment de novo, 

21 drawing all factual inferences in favor of the non-moving party. Sousa v. Marquez, 702 F.3d 

22 124, 127 (2d Cir. 2012). 
5 

1 Upon such review, we conclude that the district court properly dismissed Vayani’s claims 

2 as collaterally estopped or time barred. Except as noted below, we therefore affirm for 

3 substantially the reasons stated by the district court in its thorough August 11, 2017 decision. 

4 Vayani argues that the district court erred when it converted the Funds defendants’ 

5 motion to dismiss into a motion for summary judgment because he did not have an opportunity 

6 to engage in discovery. See Hernandez v. Coffey, 582 F.3d 303, 309 (2d Cir. 2009) (holding that 

7 a pro se plaintiff was entitled to an opportunity to take relevant discovery before the district court 

8 converted a motion for judgment on the pleadings into a motion for summary judgment). But in 

9 his Second Amended Complaint, Vayani referred to or relied on all of the documents attached to 

10 the Funds defendants’ motion. Accordingly, those documents may be viewed as incorporated 

11 into his pleading by reference, and were therefore proper subjects for the district court to 

12 consider on a motion to dismiss. See Nicosia v. Amazon.com, Inc., 834 F.3d 22d, 230-31 (2d Cir. 

13 2016). Moreover, although the district court stated that it had converted the Funds defendants’ 

14 motion into a motion for summary judgment, the district court did not refer to or apparently rely 

15 on any of the materials submitted by the Funds defendants in rendering its decision. Accordingly, 

16 notwithstanding the district court’s statement, the Funds defendants’ motion was, as a practical 

17 matter, “not converted into a motion for summary judgment.” Hayden v. Cty. Of Nassau, 180 

18 F.3d 42, 54 (2d Cir. 1999). As a result, dismissal was proper even though Vayani did not have an 

19 opportunity to engage in discovery. 

20 We have considered Vayani’s remaining arguments and find them to be without merit. 

21 Accordingly, we AFFIRM the judgment of the district court. 

22 FOR THE COURT: 

23 Catherine O’Hagan Wolfe, Clerk of Court