    13-1223
    Sasmor v. Powell


                             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.

           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 13th day of February, two thousand fourteen.

    PRESENT:

                       Pierre N. Leval,
                       Guido Calabresi,
                       Gerard E. Lynch,
                                 Circuit Judges.
    _____________________________________

    Jon Sasmor,

                                   Plaintiff - Appellant,

                       v.                                      13-1223

    Steven Powell, Individually and as City Marshal,

                                   Defendant - Cross Claimant
                                   - Cross Defendant - Appellee,

                       and

    Chaim Goldberger, AKA Henry Goldberg, Isaac
    Teitelbaum, AKA Isaac Titalbaum, Abraham
    Schneebalg, Fern Fisher, Individually and as Deputy
    Chief Administrative Judge for the New York City
    Courts, Carol Alt, Individually and as Chief Clerk of
the Civil Court of the City of New York, Henry
Management, LLC,

                        Defendants - Cross
                        Defendants - Appellees.
______________________________________

FOR PLAINTIFF-APPELLANT:                             Jon Sasmor, pro se, Brooklyn, New York.

FOR DEFENDANTS-APPELLEES:                            Kenneth D. Litwack, Esq., Kenneth D.
                                                     Litwack Counselor at Law, P.C., Bayside,
                                                     NY, for Appellee Steven Powell.

                                                     David Lyle Stern, Stern & Stern, Esqs.,
                                                     Brooklyn, NY, for Appellees Chaim
                                                     Goldberger, Isaac Teitelbaum, Abraham
                                                     Schneebalg, and Henry Management, LLC.

                                                     Mark Shawhan, Esq., Assistant Solicitor
                                                     General, Office of the Attorney General
                                                     (Barbara D. Underwood, Solicitor General,
                                                     and Steven C. Wu, Deputy Solicitor
                                                     General, on the brief), for Eric T.
                                                     Schneiderman, Attorney General of the
                                                     State of New York, NY, for Appellees Fern
                                                     Fisher and Carol Alt.

       Appeal from a judgment of the United States District Court for the Eastern District of

New York (Matsumoto, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Jon Sasmor, proceeding pro se, appeals the judgment of the district court,

dismissing his claims stemming from his eviction from a Brooklyn, New York, rooming house.

We assume the parties’ familiarity with the underlying facts, the procedural history of the case,

and the issues on appeal.



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       We review de novo a district court decision dismissing a complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6), or 12(c). See Jaghory v. New York State Dep't of Educ., 131

F.3d 326, 329 (2d Cir. 1997); Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). To survive

a Rule 12(b)(6) motion, the complaint must plead “enough facts to state a claim to relief that is

plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009)

(in reviewing a judgment on the pleadings, Court “employ[s] the same standard applicable to

dismissals pursuant to [Rule] 12(b)(6).” (internal quotation marks and ellipses omitted)).

Although a court must accept as true all the factual allegations in the complaint, that requirement

is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. A claim will have “facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id.

       We affirm for substantially the reasons recommended by the magistrate judge in its report

and recommendation (“R&R”), and the district court in its order adopting that recommendation.

Contrary to Appellant’s contentions, the magistrate judge and the district court properly

addressed all of his claims. Rather than addressing the merits of his claims, they found he lacked

standing to bring them because the state court’s conclusive determination that the Appellant

lacked standing to advance those claims precluded Appellant from relitigating the issue in

federal court. We reject Appellant’s contention that this ruling was in error because the state

courts did not expressly decide that he lacked a possessory interest in the subject apartments, and

because he was not a named party in the proceedings in which he sought to intervene. For

purposes of issue preclusion, “[t]he prior decision of the issue need not have been explicit” as


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long as “it is contained in that which has been explicitly decided” by “necessary implication.”

Postlewaite v. McGraw-Hill, 333 F.3d 42, 48 (2d Cir. 2003). That principle governs here.

Additionally, the fact that Appellant was not a named party to the state court proceedings is not

dispositive where, as here, Appellant actually participated in the proceedings and had a full and

fair opportunity to litigate the existence of his interest in the subject apartments. See Montana v.

United States, 440 U.S. 147, 154 (1979) (“One who prosecutes or defends a suit in the name of

another to establish and protect his own right, or who assists in the prosecution or defense of an

action in aid of some interest of his own is as much bound as he would be if he had been a party

to the record.” (internal quotation marks and alterations omitted)); Wright & Miller, Federal

Practice & Procedure § 4451 Nonparty Control (2013) (“A nonparty who has in fact enjoyed a

full and fair litigation has no more claim than a party to enjoy a second chance.”).

       Furthermore, the district court properly subjected the R&R to de novo review, insofar as

Appellant objected to it. While we have considered all of Appellant’s remaining arguments and

find them to be without merit, we appreciate Appellant’s able and well-prepared presentation of

his arguments in this case. Accordingly, we AFFIRM the judgment of the district court.


                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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