    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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