Moroshkin v. Commisso et al, No. 1:2021cv08926 - Document 3 (S.D.N.Y. 2021)

Court Description: MEMORANDUM OPINION AND ORDER OF DISMISSAL. Moroshkin's Complaint is dismissed without prejudice forlack of subject-matter jurisdiction. Moreover, the Court declines to grant Moroshkin leave toamend because the defects in his Complaint cannot be cured and amendment would be futile.See, e.g., Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011).The Clerk of Court is directed close this case and mail a copy of this order to Plaintiff.SO ORDERED. (Signed by Judge Jesse M. Furman on 11/4/21) (yv) Transmission to Docket Assistant Clerk for processing.

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Moroshkin v. Commisso et al Doc. 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK SERGEI MOROSHKIN, Plaintiff, 21-CV-8926 (JMF) -v- MEMORANDUM OPINION AND ORDER OF DISMISSAL BRITTANY COMMISSO, Defendant. JESSE M. FURMAN, United States District Judge: Plaintiff Sergei Moroshkin, who proceeds without counsel, sues Defendant Brittany Commisso for actions that are alleged to have led to Andrew Cuomo’s resignation as Governor of the State of New York and to the filing of criminal charges against Cuomo. Moroshkin seeks (1) an order requiring Comisso to pay $500,000 to the State of New York to offset the costs of the gubernatorial transition; and (2) judicial review of Commisso’s communications with other actors involved in Cuomo’s resignation due to concerns over “the leak of classified information.” ECF No. 1 (“Compl.”), at 6. For the reasons set forth below, Moroshkin’s claims are DISMISSED for lack of subject-matter jurisdiction. BACKGROUND Moroshkin makes the following allegations. Commisso was an executive assistant to Andrew Cuomo when he was Governor of New York. Compl. 5. On August 9, 2021, Commisso gave an interview at a CBS studio in New York City claiming that, on December 7, 2019, thenGovernor Andrew Cuomo inappropriately touched her. Id. This “influenced” ten other women to “join her in complaining” about Cuomo, ultimately leading to his resignation on August 24, 2021. Id. at 5-6. On October 28, 2021, the Albany County Sheriff brought a criminal complaint against Andrew Cuomo, with Commisso as the complainant. Id. at 6. Dockets.Justia.com Dep’t of State, 983 F.3d 589, 601 (2d Cir. 2020) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). To establish standing, a plaintiff must be able to prove, among other things, “injury in fact” — that is, “that he or she suffered an invasion of a legally protected interest that is concrete and particularized . . . .” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (internal quotation marks omitted). “For an injury to be particularized, it must affect the plaintiff in a personal and individual way.” Id. (internal quotation marks omitted); see also Libby v. Price, 689 F. App’x 659, 660 (2d Cir. 2017) (holding that a pro se plaintiff lacked standing to pursue claims that the Affordable Care Act “sharply changes the ethos of our culture” because, among other reasons, he was not affected by the Affordable Care Act in an individualized way). In light of these standards, Moroshkin’s claims — even construed liberally — must be dismissed because he does not show that he personally “suffered an invasion of a legally protected interest that is concrete and particularized . . . .” Spokeo, Inc., 578 U.S. at 338. The injury that Moroshkin posits — potential harms to “national security” or “leak[s] of classified information” — does not affect him in a way that is different from the harm to any other New Yorker. See, e.g., United States v. Richardson, 418 U.S. 166, 176-77 (1974) (holding that the plaintiff lacked standing where “the impact on him [wa]s plainly undifferentiated and common to all members of the public” (internal quotation marks omitted)). The relief that Moroshkin seeks — including payment of money to the State of New York as reimbursement for the cost of the gubernatorial transition and judicial monitoring for potential leaks of classified information — only confirms that he is not seeking redress for a particularized harm that he personally suffered. Because the facts alleged in the Complaint show that Moroshkin has not suffered an injury in fact, he lacks standing to sue. See Spokeo, Inc., 578 U.S. at 338-39. Accordingly, the Complaint must be and is DISMISSED without prejudice for lack of subject-matter jurisdiction. 3 CONCLUSION For the foregoing reasons, Moroshkin’s Complaint is dismissed without prejudice for lack of subject-matter jurisdiction. Moreover, the Court declines to grant Moroshkin leave to amend because the defects in his Complaint cannot be cured and amendment would be futile. See, e.g., Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011). The Clerk of Court is directed close this case and mail a copy of this order to Plaintiff. SO ORDERED. Dated: November 4, 2021 New York, New York JESSE M. FURMAN United States District Judge 4

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