09-0180-cv
Gotbetter v. Wendt
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH TH IS CO URT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 30 th day of March, two thousand ten.
PRESENT: ROBERT D. SACK,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
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HOWARD GOTBETTER,
Plaintiff-Appellant,
v. No. 09-0180-cv
PETER M. WENDT, DOUGLAS E. McKEON,
WILLIAM P. McCOOE, WILLIAM J. DAVIS,
Defendants-Appellees.
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APPEARING FOR APPELLANT: HOWARD GOTBETTER, pro se, New York,
New York.
APPEARING FOR APPELLEES: PA TRICK J. W ALSH , Assistant Solicitor
General of Counsel (Barbara D. Underwood,
Solicitor General, Peter Karanjia, Special Counsel
to the Solicitor General, on the brief) for Andrew
M. Cuomo, Attorney General of the State of New
York, New York, New York.
Appeal from the United States District Court for the Southern District of New York
(Richard M. Berman, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the December 4, 2008 judgment of the district court is AFFIRMED.
Pro se plaintiff Howard Gotbetter appeals from the dismissal of his complaint for
money damages filed under 42 U.S.C. § 1983 against Judge Peter M. Wendt for ruling
against Gotbetter in an action in the Housing Part of the Civil Court of the City of New York.
We assume the parties’ familiarity with the facts and record of prior proceedings, which we
reference only as necessary to explain our decision to affirm.
In reviewing a district court’s dismissal of a complaint for lack of subject matter
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), we review factual findings for clear error
and legal conclusions de novo, accepting all material facts alleged in the complaint as true
and drawing all reasonable inferences in the plaintiff’s favor. See Morrison v. Nat’l Austl.
Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008). Dismissal under Rule 12(b)(1) is proper “when
the district court lacks the statutory or constitutional power to adjudicate” the case.
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Upon de novo review, we
conclude, for substantially the same reasons stated by the district court, that plaintiff’s § 1983
claims are barred by the doctrine of judicial immunity.
It is well-established that judges enjoy absolute immunity “for their judicial acts, even
when such acts are in excess of their jurisdiction, and are alleged to have been done
maliciously or corruptly.” Stump v. Sparkman, 435 U.S. 349, 355-56 (1978) (internal
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quotation marks omitted); see also Nixon v. Fitzgerald, 457 U.S. 731, 766 (1982); Bliven v.
Hunt, 579 F.3d 204, 209-10 (2d Cir. 2009). An exception applies only if the judge “‘acted
in the clear absence of all jurisdiction,’” Tucker v. Outwater, 118 F.3d 930, 933 (2d Cir.
1997) (quoting Stump v. Sparkman, 435 U.S. at 356-57). A clear absence of jurisdiction has
objective and subjective components, requiring a showing (1) that “no reasonable judge
would have thought jurisdiction proper” and (2) that the judge “actually knew or must have
known of the jurisdictional defect.” Id. at 934 (internal quotation marks omitted). Gotbetter
can show neither.
Gotbetter argues that Judge Wendt lacked jurisdiction over the challenged holdover
proceeding because such a proceeding cannot be maintained where the premises are part of
an unregistered multiple dwelling. A reasonable judge might have thought otherwise,
however, in light of New York precedent holding that the failure to file a “multiple dwelling
registration” statement, see N.Y.C. Admin. Code § 27-2107(b); 22 N.Y. Comp. Codes R. &
Regs. tit. 22 § 208.42(g), “was not intended to and cannot affect the jurisdiction of the Civil
Court, particularly with respect to holdover proceedings,” Chan v. Adossa, 760 N.Y.S.2d
609, 611 (N.Y. App. Term 2003); see also Czerwinski v. Hayes, 799 N.Y.S.2d 349, 353
(N.Y. App. Term 2005) (holding that “owner of an unregistered multiple dwelling may
maintain a holdover proceeding and may recover possession in such a proceeding where the
ground for recovery is not rent-based”).
In any event, assuming arguendo that Judge Wendt erroneously exercised jurisdiction
over the holdover proceeding, the record does not support a conclusion that he did so in
knowing violation of the alleged jurisdictional limits. The remedy for any such error is an
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appeal, not a § 1983 action for money damages.
Accordingly, we conclude that the district court properly dismissed plaintiff’s claims
as barred by judicial immunity.
We have considered plaintiff’s remaining arguments on appeal and conclude that they
are without merit. In light of the foregoing, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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