14-2381
Neroni v. Coccoma




                         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 COURTS 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 30th day of January, two thousand fifteen.

PRESENT:

                    PIERRE N. LEVAL,
                    ROSEMARY S. POOLER,
                    DENNY CHIN,
                         Circuit Judges.

_____________________________________

FREDERICK J. NERONI,

                          Plaintiff-Appellant,

                    v.                                                       14-2381

MICHAEL V. COCCOMA, individually and as the Deputy Chief
Administrative Judge in charge of Upstate New York courts, A. GAIL
PRUDENTI, individually and as the Chief Administrative Judge of Upstate
New York, ROBERT MULVEY, individually and as Chief Administrative
Judge, 6th Judicial District, ELLEN L. COCCOMA, individually and as a
former member of the Committee for Professional Conduct, Appellate
Division, Third Judicial Department, HINMAN, HOWARD & KATTELL,
LLP, a Binghamton law firm, KEVIN DOWD, Individually and as a
Supreme Court Justice, State of New York, assigned to the Delaware County
Supreme Court case Kilmer v. Moseman, Delaware County Index No. 2009-
298, Mokay v. Mokay, Delaware County Index No. 2007-695, EUGENE
PECKHAM, individually and as the former Acting Supreme Court justice
assigned to the Delaware County Supreme Court case Kilmer v. Moseman,
Delaware County Index No. 2009-298, and as a judicial hearing officer in
Delaware County Supreme Court, LEVENE, GOULDIN AND THOMPSON,
LLP, MARGARET FOWLER, ESQ., THOMAS MERCURE, individually
and as the former acting Chief Judge, Appellate Division, Third Judicial
Department, KAREN PETERS, individually and as the Chief Judge,
Appellate Division, Third Judicial Department, KELLY SANFILIPPO,
Court Clerk Delaware County Supreme, County and Surrogate's Court, in
her official capacity only,

                  Defendants-Appellees.
_____________________________________


FOR PLAINTIFF-APPELLANT:                    Frederick J. Neroni, pro se, Delhi, N.Y.

FOR DEFENDANTS-APPELLEES
MICHAEL COCCOMA, PRUDENTI,
MULVEY, ELLEN COCCOMA,
DOWD, PECKHAM, MERCURE,
PETERS, AND SANFILLIPPO:                    Andrew B. Ayers, Assistant Solicitor General,
                                            Barbara D. Underwood, New York State Office of
                                            the Attorney General, New York, N.Y.

FOR DEFENDANT-APPELLEE
HINMAN, HOWARD & KATTELL,
LLP:                                        James Smith Gleason, Hinman, Howard & Kattell,
                                            LLP, Binghamton, N.Y.

FOR DEFENDANTS-APPELLEES
LEVENE, GOULDIN AND
THOMPSON, LLP and
MARGARET FOWLER:                            Robert A. Barrer, Hiscock & Barclay, LLP,
                                            Syracuse, N.Y.




       Appeal from the judgment of the United States District Court for the Northern District of

New York (Sharpe, J.).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED and the motion for

certification is DENIED.

       Frederick J. Neroni appeals from the district court’s judgment dismissing his complaint

brought under 42 U.S.C. § 1983 for violations of his constitutional rights and denying his motion

to recuse Judge Sharpe. We assume the parties= familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

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

Civil Procedure 12(b)(6). Litwin v. Blackstone Group, L.P., 634 F.3d 706, 715 (2d Cir. 2011).

Where a district court grants a defendant’s Rule 12(b)(1) motion to dismiss, we review the

district court’s legal conclusions de novo and its factual findings for clear error. Aurecchione v.

Schoolman Transp. Sys. Inc., 426 F.3d 635, 638 (2d Cir. 2006). In each instance, we “accept[]

all factual allegations as true and draw[] all reasonable inferences in favor of the plaintiff.”

Litwin, 634 F.3d at 715; see also Triestman, 470 F.3d at 474. Dismissal of a case under Rule

12(b)(1) is proper “when the district court lacks the statutory or constitutional power to

adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). 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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and “allow[] the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged,”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).




                                                  3
A district judge's decision not to recuse himself from a proceeding or disqualify counsel is

reviewed for abuse of discretion. SEC v. Razmilovic, 738 F.3d 14, 30 (2d Cir. 2013) (recusal);

GSI Commerce Solutions, Inc. v. BabyCenter, L.L.C., 618 F.3d 204, 209 (2d Cir. 2010)

(disqualification). We affirm for substantially the same reasons stated by the district court in its

well-reasoned opinion. Neroni v. Coccoma, No. 3:13-CV-1340, 2014 WL 2532482, at *4-14

(N.D.N.Y. June 5, 2014). Neroni argues that the district court erred by holding that the New

York Committee on Professional Standards is “an arm of the appellate division.” However, we

have consistently extended quasi-judicial immunity to attorney disciplinary committees. See

Anonymous v. Ass'n of the Bar of City of New York, 515 F.2d 427, 433 (2d Cir. 1975) (noting

that a Grievance Committee “acts as a quasi-judicial body” and thus “is an arm of the Appellate

Division”), (quoting Wiener v. Weintraub, 22 N.Y.2d 330, 331-32 (1968)).

We decline to consider Neroni’s argument, raised for the first time on appeal, that his wife’s suit

against Judge Sharpe warranted recusal. See Greene v. United States, 13 F.3d 577, 586 (2d Cir.

1994). Finally, in our discretion we deny Neroni’s motion to certify several questions to the

New York Court of Appeals. We note that the question of whether particular conduct constitutes

state action under Section 1983 is a matter of federal law, not state law. Powe v. Miles, 407 F.2d

73, 82-83 (2d Cir. 1968) (declining to consider state decisions in determining whether official

conduct constitutes state action under Section 1983).




                                                  4
       We have considered Neroni’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.


                                          FOR THE COURT:
                                          Catherine O’Hagan Wolfe, Clerk




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