16-881-cv Steinberg v. Elkman 

## 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 PE RMITTED 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 A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 17 th day of November, two thousand sixteen. PRESENT: JOHN M. WALKER, JR., PETER W. HALL, DENNY CHIN, Circuit Judges.

_____________________________________ Jonathan Roger Steinberg, Plaintiff-Appellant , v. 16-881-cv Stephen M. Elkman, Alan Gerst, Robert Eli Michael, Andrew Cuomo, Defendants-Appellees .

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FOR APPELLANT: J ONATHAN R. S TEINBERG , pro se, Law Office of J.R. Steinberg, New York, NY.FOR APPELLEES: R OBERT E LI M ICHAEL , Robert E. Michael & Associates, New York, NY, and M ARK S HAWHAN , New York State Office of the Attorney General, New York, NY. Appeal from a judgment of the United States Di strict Court for the Southern District of New York (Swain, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Appellant Jonathan R. Steinberg, an attorney proceeding pro se, appeals from the district court’s judgment dismissing his complaint bro ught pursuant to 42 U.S.C. § 1983 and state law against Alan Gerst (the owner of Queen’s Import Motors (“QIM”)), Robert Michael (an attorney who represented Gerst in a previ ous, related state court proceeding concerning the sale of an Aston Martin DB5), Stephen Elkman (who later obtai ned ownership of the Aston Martin DB5 at a sheriff’s auction), and Governor Andrew Cuom o. Steinberg alleged in his complaint, inter alia , that he was denied due process in the prior state court proceedings, a sanctions order levied by the state court was improper, the sa le of the Aston Martin DB5 constituted a fraudulent conveyance under state law, and Governor Cuomo failed to investigate properly the state court corruption. 1 The district court dismissed the complaint for lack of subject matter jurisdiction, determining that sovereign immunity barred Stei nberg’s claims against Governor Cuomo and that the Rooker-Feldman doctrine barred his remaining claims. We assume the parties’ familiarity with the underlying facts, the procedural histor y of the case, and th e issues on appeal. When reviewing a dismissal for lack of subject matter jurisdiction, based on either sovereign immunity or the Rooker-Feldman doctrine, we review legal conclusions de novo

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1 Steinberg raised other state law claims in his complaint, but has failed to challenge the district court’s dismissal of these claims and, theref ore, has abandoned any challenge on appeal. See LoSacco v. City of Middletown , 71 F.3d 88, 92-93 (2d Cir. 1995).3 Beaulieu v. Vermont , 807 F.3d 478, 483 n.1 (2d Cir. 2015); Green v. Mattingly , 585 F.3d 97, 101 (2d Cir. 2009). Sovereign immunity bars suit against a state o fficial sued in his official capacity, unless Congress has abrogated that immunity or the state has consented to suit. See Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 99 & n.9 (1984); Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. , 506 U.S. 139, 144-46 (1993). Congre ss has not abrogated sovereign immunity for § 1983 claims, Dube v. State Univ. of N.Y. , 900 F.2d 587, 594 (2d Cir. 1990), nor has New York waived immunity, see Trotman v. Palisades Interstate Park Comm’n , 557 F.2d 35, 39-40 (2d Cir. 1977). Under the Ex parte Young exception, however, sovereign immunity does not bar suit when the litigant seeks prospective relief based on an “ongoing violation of federal law,” Verizon Md. Inc. v. Pub. Serv. Comm’n of Md. , 535 U.S. 635, 645 (2002), that the state official has “some connection” with enforcing, In re Dairy Mart Convenience Stores, Inc. , 411 F.3d 367, 372-73 (2d Cir. 2005) (quoting Ex parte Young , 209 U.S. 123, 154, 157 (1908)). Applying these principles, we conc lude that the district court pr operly determined that sovereign immunity barred Steinberg’s claims against Go vernor Cuomo, who was sued in his official capacity. The Ex parte Young exception to sovereign immunity does not apply here: Steinberg did not seek prospective relief based on an ongoing violation of federal law but instead sought readjudication of his state law claims, and, in a ny event, Governor Cuom o had no connection with enforcing or reviewing decisions rendered by the state judiciary in the circumstances presented here. See Verizon , 535 U.S. at 645; In re Dairy Mart , 411 F.3d at 372-73. Under the Rooker-Feldman doctrine, federal courts lack subject matter jurisdiction over claims that effectively challe nge state court judgments. See District of Columbia Court of4 Appeals v. Feldman , 460 U.S. 462, 486-87 (1983); Rooker v. Fidelity Trust Co ., 263 U.S. 413, 415-16 (1923). A claim is barred under the Rooker-Feldman doctrine when (1) the federal court plaintiff lost in state court; (2) the plaintiff complains of injuries caused by a state court judgment; (3) the plaintiff invites the federa l court to review and reject that judgment; a nd (4) the state court judgment was rendered prior to the commencement of proceedings in the district court. Exxon Mobil Corp. v. Saudi Basic Indus. Corp ., 544 U.S. 280, 284 (2005). “The first and fourth of these requirements may be loosely termed procedural; th e second and third may be termed substantive.” McKithen v. Brown , 481 F.3d 89, 97 (2d Cir. 2007) (citation omitted). Upon review, we conclude that the distri ct court properly determined that the Rooker-Feldman doctrine barred Steinberg’s claims th at the state court proceedings were procedurally improper and that the sanctions order const ituted Hobbs Act extortion. See id . We hold, however, that the Rooker-Feldman doctrine did not bar Steinbe rg’s state law fraudulent conveyance claim, which turned on who owned th e DB5, because the state court explicitly declined to address the question of ownership. Steinberg v. Queen’s Import Motors , N.Y. Supreme Court 114728/1999, doc. 36 (J anuary 2008 Decision) at 9- 10. Deciding Steinberg’s fraudulent conveyance claim did not require the district court to re view the state court decision. Rooker-Feldman , therefore, did not apply. See Hoblock v. Albany Cnty. Bd. of Elections , 422 F.3d 77, 85-86 (2d Cir. 2005). Nonetheless, we affirm the di strict court’s dismissal of St einberg’s fraudu lent conveyance claim on the alternative basis that it lacked merit. See Leon v. Murphy , 988 F.2d 303, 308 (2d Cir. 1993) (“We may affirm . . . on any basis for which th ere is a record sufficient to permit conclusions of law, including grounds upon which the district court did not rely.”). New York’s fraudulent5 conveyance statute generally prohibi ts a debtor from transferring assets to avoid satisfying his debt. See Mitchell v. Garrison Protective Serv., Inc. , 819 F.3d 636, 641 (2d Cir. 2016); see also Sharp Int’l Corp. v. State Street Bank & Trust Co. , 403 F.3d 43, 53-57 (2d Cir. 2005) (applying New York’s fraudulent conveyance statute); N.Y. Debt. & Cred. Law §§ 273-76 (defining actual and constructive fraudulent conveyances). QIM’ s sale of the DB5 was plainly not a fraudulent conveyance because QIM was not a de btor. A review of the recor d, oral argument transcript, and state court docket reveals that QIM sold Steinbe rg’s DB5—pursuant to an auction held by the Sheriff of the City of New York—to satisfy a judg ment that it had obtained against Steinberg for $30,000 in legal fees. See Steinberg , N.Y. Supreme Court 114728/1999, doc. 127. Steinberg cannot challenge that sale by inaccurately characte rizing it as a fraudulent conveyance, and has raised no meritorious challenge to QIM’s sale of the DB5. We have considered Steinberg’s remaining argu ments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk