Full opinion text
MEMORANDUM AND ORDER SEYBERT, District Judge. Presently before the Court are fourteen pending motions. To ensure completeness and clarity, and for administrative purposes, it is necessary to identify in summary fashion each pending motion. BACKGROUND Plaintiff commenced the instant action on December 9, 1997, alleging the following-claims: 1.Against Defendant Dean Witter Reynolds, Inc., (“Dean Witter”), for interstate fraud, conspiracy, violations of a fiduciary duty, criminal enterprise, money laundering, racketeering, mail fraud, and embezzlement, stemming from Dean Witter’s alleged failure to obey a state court injunction and its subsequent release via embezzlement in May, 1990, of plaintiffs commingled marital assets in account number 201-3884, valued in excess of $170,000.00. As against Defendant Dean Witter, Vasile prays to recover $1,000,000.00 in compensatory damages and $1,000,-000.00 in punitive damages; 2. Against Defendant Norman P. Weiss, Esq., for interstate fraud, criminal enterprise, malicious abuse of legal process, slander, money laundering, and the intentional infliction of emotional distress, for his role in wrongly accusing plaintiff of embezzling the assets of Robyn Enright, before they were embezzled by others. As against Defendant Weiss, Vasile prays to recover $6,000,000.00 in compensatory damages and $6,000,000.00 in punitive damages; 3. Against Defendant Justice Alan D. Oshrin, for breaching a ministerial duty, civil rights violations, due process violations, conspiracy, obstruction, malicious abuse of legal process, and subornation. As against Defendant Justice Oshrin Vasile prays to recover $1,000,000.00 in compensatory damages and $1,000,000.00 in punitive damages; 4. Against Defendant Justice William L. Underwood, for breaching a ministerial duty, civil rights violations, due process violations, conspiracy, and subornation. As against Defendant Justice Oshrin Vasile prays to recover $1,000,000.00 in compensatory damages and $1,000,-000.00 in punitive damages. DISCUSSION I. Standards Governing a 12(b)(6) Motion to Dismiss A district court should grant a motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim only, if “ ‘it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.’ ” H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893, 2906, 106 L.Ed.2d 195 (1989) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984)); Annis v. County of Westchester, N.Y., 36 F.3d 251, 253 (2d Cir.1994). In applying this standard, a district court must “read the facts alleged in the complaint in the light most favorable” to the plaintiff, and accept these allegations as true. H.J. Inc. at 249, 109 S.Ct. at 2906; Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Christ Gatzonis Elec. Contractor, Inc. v. New York City Sch. Constr. Auth., 23 F.3d 636, 639 (2d Cir.1994); see also Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 165, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517 (1993) (citing Fed.R.Civ.P. 8(a)(2) to demonstrate liberal system of ‘notice pleading’ employed by the Federal Rules of Civil Procedure). The court’s duty merely is “to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.” Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980); accord Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). The appropriate inquiry, therefore, is not “whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer, 416 U.S. at 236, 94 S.Ct. at 1686; Ricciuti v. New York City Transit Auth., 941 F.2d 119, 124 (2d Cir.1991) (plaintiff is not compelled to prove his case at the pleading stage). Additionally, it is not required that a claimant set out in detail the facts upon which he or she bases a claim, but only a statement of his or her claim that will give defendant “fair notice of what [the] claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). Therefore, where a complaint is filed that charges each element necessary to recover, dismissal of the ease for failure to set out evidential facts can seldom be warranted. United States v. Employing Plasterers’ Ass’n of Chicago, 347 U.S. 186, 188-89, 74 S.Ct. 452, 98 L.Ed. 618 (1954). Individual allegations, however, that are so baldly conclusory that they fail to give notice of the basic events and circumstances of which the plaintiff complains are meaningless as a practical matter and, as a matter of law, insufficient to state a claim. Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.1987). When deciding a Rule 12(b)(6) motion, courts are directed to treat the motion as one for summary judgment if matters outside the pleading are presented to and not excluded by the court. Sua sponte conversion of a motion to dismiss into a motion for summary judgment is appropriate where “the losing party is not taken by surprise by the court’s action.” Blassingame v. Secretary of Navy, 811 F.2d 65, 74 (2d Cir.1987). In the instant action, the Plaintiff Carmine Vasile has moved for summary judgment presenting an abundance of extrinsic evidence, therefore, the Court will consider all the pending motions to dismiss as motions for summary judgment. II. Standards Governing a Motion For Summary Judgment Pursuant to Federal Rule of Civil Procedure 56(c), courts may not grant a motion for summary judgment unless “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The burden of proof is on the moving party to show that there is no genuine issue of material fact, Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir.1994) (citing Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975)), and “all ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought.” Id. (citing Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.1985), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987)). “Factual disputes that are irrelevant or unnecessary-will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (citing 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2725, at 93-95 (1983)). A party opposing a motion for summary judgment “‘may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.’ ” Id. at 248, 106 S.Ct. at 2510 (quoting First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)). Under the law of the Second Circuit, “[w]hen no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.” Gallo, 22 F.3d at 1224 (citing Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir.1988)). It is within this framework that the Court addresses the instant motions. III. Criminal Allegations As an initial matter, many of Vasile’s claims involve allegations of criminal activity. It is an elementary concept inherent in this nation’s governmental structure and rooted in separation of powers principles that the investigation and prosecution of criminal laws is delegated to the executive branch and the appropriate law enforcement agency; agency determination depends upon the jurisdiction and the crime involved. In reviewing the numerous submissions of Carmine Vasile over the past year, it is clear that he has presented his claims to practically every federal and state law enforcement agency for review and consideration. It is not the Court’s role to sit in judgment of those agencies’ decisions. It is also a general precept of criminal law that unless the statute specifically authorizes a private right of action, none exists. See Thompson v. Thompson, 484 U.S. 174, 179, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988); Cort v. Ash, 422 U.S. 66, 79, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) (no private right of action exists under criminal statutes unless there is a clear statutory basis for such an inference); Nashville Milk Co. v. Carnation Co., 355 U.S. 373, 78 S.Ct. 352, 2 L.Ed.2d 340 (1958). One of the difficulties the Court faces, as is common in many pro se cases, is understanding the claims alleged, and associating the allegations, if possible, with viable claims. For example, Vasile accuses Defendant Dean Witter of, inter alia, interstate fraud, conspiracy to embezzle, obstruction of justice, mail fraud, violation of an injunction, and delaying discovery, while accusing Defendant Weiss of fraud, criminal enterprise, malicious abuse of legal process, and lying to a United States Department of Defense Investigator. The Justices are accused of breaching ministerial duties, and conspiracy to violate plaintiffs civil and property rights and malicious abuse of legal process. Justice Underwood broke the law, Vasile maintains, by entering an Order preventing Vasile from commencing any action or proceeding in his court against Sheila Enright, without prior approval of the court to ensure that the claim is made in good faith. Justice Oshrin purportedly broke the law by failing to protect Vasile from Justice Underwood’s abuse of legal process, by rejecting Vasile’s pleas for judicial intervention and by failing to enjoin Justice Underwood. As discussed infra, these judicial acts by Justices Underwood and Oshrin are actions taken pursuant to their jurisdiction and their inherent power “to manage their own proceedings ... to control the conduct of those who appear before them ... [and] to punish conduct which abuses the judicial process.” Chambers v. NASCO, Inc., 501 U.S. 32, 33, 111 S.Ct. 2123, 2126, 115 L.Ed.2d 27 (1991). Just as I have placed limitations on Vasile’s right to file additional material and bring new proceedings without obtaining prior approval of this Court, Justice Underwood was equally empowered. Even though the Court construes the claims in the light most favorable to Plaintiff, there is no private right of action for the vast majority of criminal allegations alleged. For example, Vasile has alleged a criminal conspiracy to deprive Plaintiff of his constitutional rights, allegedly involving all the defendants, either jointly or as between the individual defendants and other actors. The federal criminal conspiracy statute, 18 U.S.C. § 241, does not provide for a private right of action. See Powers v. Karen, 768 F.Supp. 46, 51 (E.D.N.Y.1991), aff'd, 963 F.2d 1522 (2d Cir.1992); John’s Insulation, Inc. v. Siska Construction Co., Inc., 774 F.Supp. 156, 163 (S.D.N.Y.1991); United States v. Kaufman, 750 F.Supp. 106, 108 (S.D.N.Y.1990); Dugar v. Coughlin, 613 F.Supp. 849 (S.D.N.Y.1985). Nor may Vasile bring an action alleging wire or mail fraud, because the respective statutes do not create a private right of action. See Official Publications, Inc. v. Kable News Co., 884 F.2d 664, 667 (2d Cir.1989); Pappas v. Arfaras, No. B-90-326(WWE), 1991 WL 218072, at *2 (D.Conn. Aug.27, 1991) (no legislative history or case law indicates that either 18 U.S.C. § 1341 (mail fraud) or 18 U.S.C. § 1343 (wire fraud) offers basis for private cause of action); Raffaele v. Designers Break, Inc., 750 F.Supp. 611, 612-13 (S.D.N.Y.1990). With respect to Defendant Weiss’ alleged false statements to a Department of Defense Investigator, although a criminal prosecution might be brought under the general statute covering false statements to an agency, 18 U.S.C. § 1001, there is no private right of action under this federal criminal statute. See Federal Savings and Loan Ins. Corp. v. Reeves, 816 F.2d 130, 137-39 (4th Cir.1987); United States v. Richard Dattner Architects, 972 F.Supp. 738, 744 (S.D.N.Y.1997); Shah v. New York State Dep’t of Civil Serv., No. 94 Civ 9193, 1996 WL 19021, at *7, (S.D.N.Y. Jan.17, 1996); Williams v. McCausland, 791 F.Supp. 992, 1001 (S.D.N.Y.1992). Nor has plaintiff cited any authority which would support implying a private right of action for violation of these alleged crimes. If the allegations are purported to raise a claim pursuant to the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 ei seq., Congress specifically provided for a private right of action. See 18 U.S.C. § 1964(c) (“Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court”). Accordingly, as the criminal claims raised, save the RICO allegations, do not provide for a private right of action, Vasile cannot seek civil redress for these allegations. However, as discussed infra, Vasile’s allegations do not meet the minimal requisites of RICO. TV. Defendant Dean Witter Defendant Dean Witter moves to dismiss this action on numerous independent grounds. The gravamen of Vasile’s claim against Dean Witter stems from an alleged series of transfers in or about May 1990, of approximately $176,000 in commingled matrimonial and Uniform Gift for Minors Act [“UGMA”] assets, held in Dean Witter accounts, specifically account number 201-013884, and that the UGMA assets were illegally transferred into margin accounts, in contravention of a court ordered injunction. In response, Dean Witter asserts that: (1) the injunction had been dissolved prior to the challenged account activity; (2) the injunction had no legal application to Dean Witter; (3) the accounts in question were registered to Sheila Enright and Robyn Enright, and therefore Dean Witter owed Carmine Vasile no fiduciary duty; (4) Vasile has failed to allege fraud; (5) Vasile has failed to allege a RICO claim; (6) Dean Witter is exempt from liability under UGMA; (7) Dean Witter cannot be held vicariously liable; and (8) Vasile’s claims are time barred. Although each of the grounds raised for dismissal may constitute a separate and independent basis to dismiss Plaintiffs suit, the Court need not determine the propriety of each proffered ground. Because of Vasile’s undeterred persistence, however, an attempt will be made to analyze each enumerated defense. As an initial matter, Dean Witter claims that the injunction was not in force at the time the transfer was made. The accounts held by Dean Witter included separate accounts in the name of Carmine Vasile, Sheila Vasile, and Sheila Vasile CDN (custodian) for Robyn Enright CA/UGMA. A review of the activity during May, 1990, in account number 201-013884, held in the name of Mrs Sheila Vasile at a California Dean Witter branch, which eventually was transferred on May 21 to a Dean Witter branch in Melville, Long Island, where it was assigned account number 539-045735, based upon the records Plaintiff submitted, include the following: (1) On April 30, the account had a negative cash balance of $2998.20, (2) on May 15, $57,015.44 was transferred to an account at Manufacturer’s Hanover; (3) on May 16, a check written on the account cleared and was covered by a cheek deposited the day before, also in the amount of $60,000.00; (4) on May 21, a negative cash balance of $59,295.64 was transferred to the Melville branch, along with the securities portfolio; (5) sufficient securities were sold from the account to cover the shortfall; and (6) as of May 31, 1990, the Dean Witter account had a positive cash balance of $1967.14. In account number 201-019096, Sheila Va-sile for Robyn Enright, which became account number 539-046171 as of August 13, 1990, when it was transferred to the Melville office, the account statements provided by the Plaintiff reveal a total account valuation of $4727.72 as of March 31, 1990, $4727.20 as of May 30, 1990, and $3556.68 as of August 31, 1990. The reduction in account valuation was related solely to a decrease in the value of the portfolio, as there was no activity in the account. Although Vasile alleges that $176,567.14 was removed from marital assets, the records do not support such contention. Only the May 15, 1990 transfer of $57,015.44 to an account at Manufacturer’s Hanover represents assets removed from the account. The $60,000.00 appears to be a pass-through transaction where monies entered and left the account in conjunction, with no net effect. And, as indicated, there was no activity in the Robyn Enright account during the period reviewed. 1. The Injunction The Honorable Saverio J. Fierro, Suffolk County Supreme Court, presiding over an order to show cause and cross motions in the underlying divorce action, by Order, dated April 17,1989, held, in relevant part: Defendant [Carmine Vasile] is directed to pay all of the carrying charges on the marital residence, including, but not limited to, mortgage principal and interest for both the first and second mortgages, real estate taxes, water, utilities and fuel, but not telephone service, cable television, or lawn or horticultural care. Both parties are restrained and enjoined from selling, transferring, hypothecating or otherwise disposing of or encumbering any marital asset or any interest therein, including, but not limited to, the Dean Witter account no. 174534-08, Washington Public Power System Supply Systems bonds and shares of Instrument Systems maintained in Dean Witter accounts, except in the ordinary course of business or personal affairs and for full value. Leibowits v. Leibowits, 93 A.D.2d 535, 462 N.Y.S.2d 469 (2d Dep’t 1983). Mr. Vasile has provided a letter indicating that he notified Dean Witter of the court order restricting account activity. However, as the account activity in question, specifically the May 15, 1990 transfer to Manufacturer’s Hanover, arose after the May 9, 1990 Order, Index # 12305/88, entered by the same Honorable Saverio J. Fierro, Suffolk County Supreme Court, lifting the injunction, the transfer was lawful. Sheila Enright was no longer restrained from engaging in activity in her Dean Witter account. Specifically, the May 9, 1990 Order provides, in relevant part: The parties and their respective attorneys having appeared before me on May 8, 1990, and having entered into a stipulation of settlement in open court, and the parties having agreed, inter alia, ... and the parties having further agreed that the restraining order issued by this court on April 17, 1989 which restrained and enjoined the parties from selling, transferring, hypothecating or otherwise disposing of or encumbering any marital asset or any interest therein, including but not limited to, the Dean Witter accounts be terminated and of no further force and effect; and the court having had due deliberation thereon Now, on motion of Philip F. Alba, P.C., attorney for the defendant, it is ... ORDERED that the restraining order issued by this court on April 17, 1989 restraining and enjoining the parties from selling, transferring, hypothecating or otherwise disposing of or encumbering any marital asset or any interest therein, including but not limited to, the Dean Witter accounts held in the name of Sheila Vasile, Robyn Alise Enright and Carmine Vasile, be and the same is hereby terminated and of no further force and effect. [Emphasis added]. Therefore, it is clear that the Court which entered the injunction in the first instance, removed the injunction by Order dated May 9, 1990, pursuant to the stipulation of settlement of the parties, occurring in open court, and entered on the motion of Mr. Vasile’s attorney. Accordingly, Vasile’s claim against Dean Witter for transferring funds in derogation of the injunction is not factually accurate. As a separate basis for dismissal of the claims, Dean Witter asserts that the injunction at issue had no legal effect against Dean Witter because it was only addressed to the parties in the action. Moreover, Dean Witter asserts that the injunction was technically a “property restraint” issued pursuant to New York Domestic Relations Law (“DRL”) § 234, and not a “preliminary injunction” issued pursuant to CPLR Article 63. This is a correct statement of law. Justice Fierro’s Order of April 17, 1989, cited to Leibowits v. Leibowits, 93 A.D.2d 535, 462 N.Y.S.2d 469 (2d Dep’t 1983) as controlling authority for imposing the restraint on the parties. In Leibowits, the court established in its opening paragraph that “Section 234 of the Domestic Relations Law provides the authority for the issuance of an order restraining disposition of marital assets during the pendency of a divorce action. Therefore, compliance with the formalities and jurisprudential requirements of article 63 of the CPLR relative to preliminary injunctions is not a prerequisite to an order of restraint.” Id. Because a preliminary injunction would require a showing of probability of success on the merits, irreparable injury, and a favorable balancing of the equities, and would require the movant spouse to post an undertaking, the court went on to describe Section 234’s power of restraint as “vital to meaningful enforcement of the equitable distribution statute.” Id. at 536, 462 N.Y.S.2d at 471. In his concurring opinion, Justice O’Connor thoroughly explicates the legislative history of Section 234 and its scope and powers, and describes the interplay with third parties thusly: Accordingly, since section 234 is limited in its reach to the rights of the spouses as between themselves, a spouse seeking to preclude dissipation of marital property in which a third party has an interest that would be prejudiced by a change of possession must be relegated to the court’s inherent power to issue preliminary injunctions as regulated by article 63 of the CPLR. Id. at 557, 462 N.Y.S.2d at 482. Although Dean Witter is not a third party in interest, the breadth of Section 234 is clearly delimited to the immediate parties to the Order. This is buttressed by the McKinney’s Practice Commentaries to DRL § 234, C:234:5 at 98, (McKinney’s (1986)), which provides, “[w]here a restraint is sought to be made effective as against third persons, DRL 234 has no role and remedies must be sought elsewhere, as in CPLR Article 63 on injunctions .... Accordingly, where a matrimonial litigant seeks to restrain an asset transfer to third parties, or to direct those third parties to place the consideration for the asset transfer in escrow, the appropriate procedure, to obtain relief against the third parties is by resort to an application for a preliminary injunction.” As referenced by Dean Witter, and directly on point is Bell v. Roosevelt Savings Bank, 160 Misc.2d 728, 611 N.Y.S.2d 87 (N.Y.Sup.1994), which framed the issue before the court as “how a financial institution should act when it is served with an order restraining an individual from withdrawing funds from an account but the order is silent as to a restraint on the financial institution itself.” (emphasis in original). The court concluded that the result is straight-forward, “[t]he individual, who is before the court, is restrained from removing funds while the financial institution, which is not before the court, is not called upon to do anything other than honor its institutional rules concerning access to accounts,” even when notified of the restraint order. Id. at 729, 611 N.Y.S.2d at 88. By honoring its own rules pertaining to withdrawals and account activity, Dean Witter duly carried out its institutional responsibility, and accordingly is not liable to the plaintiff. 2. Fiduciary Duty Dean Witter next avers that it owes Vasile no duty, fiduciary or otherwise, with respect to the two accounts at issue, registered in the names of Mrs. Sheila Vasile and Robyn Enright. As a general matter, under New York law, a fiduciary relationship exists “when one [person] is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation.” Flickinger v. Harold C. Brown & Co. Inc., 947 F.2d 595, 599 (2d Cir.1991) (citations omitted). A relationship between a stock broker and his customer may rise to this level, but not necessarily so. See Bissell v. Merrill Lynch & Co., 937 F.Supp. 237, 246 (S.D.N.Y.1996) (“the mere existence of a broker-customer relationship is not proof of its fiduciary character.”). Rather, it is only in those instances in which the broker exercises trading discretion over the account, as delegated by the customer, that the relationship establishes a fiduciary duty. Id. In the instant action, there is nothing in the record indicating that Dean Witter had trading discretion over the account, and of greater consequence, neither account was in the name of Carmine Vasile. Mr. Vasile had no interest in either account, save at most an expectancy interest contingent upon a favorable equitable distribution of the marital assets. This is supported by Mr. Vasile’s letter of October 7, 1989, in which he notified Dean Witter’s Vice-President of Investments, Mr. D. Warner Johnson, of Justice Fierro’s court order. In the letter Vasile states “[y]ou of all people know how careful I was over the years to keep our accounts separate.” As the Vasiles kept completely separate accounts, Carmine Vasile has no legal interest in the two accounts in question and cannot establish the existence of Dean Witter’s purported fiduciary duty. 3. Conspiracy and Fraud Allegations Dean Witter asserts in defense that Vasile has not satisfied the requisite elements of fraud and that New York does not recognize a conspiracy cause of action. As an initial matter, Rule 9(b) of the Federal Rules of Civil Procedure requires that the circumstances constituting fraud be stated with particularity. As mentioned supra, there is no private right of action for criminal conspiracy. If the conspiracy allegations are construed as alleging civil conspiracy, New York law does not recognize a tort action for civil conspiracy. See Wall St. Transcript Corp. v. Ziff Communications Co., 225 A.D.2d 322, 638 N.Y.S.2d 640, 641 (1st Dep’t 1996); see also Durante Bros, and Sons, Inc. v. Flushing Nat’l Bank, 755 F.2d 239, 251 (2d Cir.), cert. denied, 473 U.S. 906, 105 S.Ct. 3530, 87 L.Ed.2d 654 (1985); Greystone Partnerships Group, Inc. v. Koninklijke Luchtvaart Maatschappij N.V., 815 F.Supp. 745, 759 (S.D.N.Y.1993). However, while New York does not recognize conspiracy as an independent cause of action in tort, a cause of action for conspiracy to do something unlawful is valid to the extent that the underlying conduct alleged states a cause of action. Local 144 Hotel, Hosp. v. C.N.H. Mgt. Assocs., 741 F.Supp. 415, 421 (S.D.N.Y.1990). To the extent the Plaintiffs claims can be read to allege conspiracy to commit fraud, under New York law, “civil conspiracy to commit fraud, standing alone, is not actionable ... if the underlying independent tort has not been adequately pleaded ...” Epstein v. Haas Sec. Corp., 731 F.Supp. 1166, 1187 (S.D.N.Y.1990) (citing Demalco Ltd. v. Feltner, 588 F.Supp. 1277, 1278 (S.D.N.Y.1984)), though “a claim of conspiracy can rest upon an independent underlying claim of fraud.” Boucher v. Sears, No. 89-CV-1353, 1997 WL 736532, at *12 (N.D.N.Y. Nov.21, 1997)(internal quotations omitted). Under New York law, a plaintiff must establish five elements by clear and convincing evidence to prevail on a claim of fraud: (1) a material misrepresentation or omission of fact; (2) made with knowledge of its falsity, (3) with an intent to defraud; (4) reasonable reliance on the part of the plaintiff; and (5) such reliance causes damage to the plaintiff. Schlaifer Nance & Co. v.. Estate of Andy Warhol, 119 F.3d 91, 98 (2d Cir.1997) (citations omitted). Once fraud is established, the conspiracy must be proven, requiring “(i) an agreement between the conspirator and the wrongdoer and (ii) a wrongful act committed in furtherance of the conspiracy.” Richardson v. Artrageous, Inc., No. 93 Civ. 5221(RPP), 1994 WL 97222 at *3 (S.D.N.Y., March 18, 1994). As Dean Witter correctly asserts, Vasile does not allege a material misrepresentation. Vasile’s contention lies on the premise that Dean Witter wrongly allowed Sheila Enright to transact business in her account and in her daughter’s account in derogation of a court order. As discussed above, Dean Witter did not violate the court order and Carmine Vasile was neither a signatory to, nor had a legal interest in, the two accounts in question. Moreover, although Vasile purportedly notified Dean Witter of the restraining order, there is no allegation that they responded or made representations of an intent to comply. They had no duty to comply, and they owed Vasile nothing with respect to these accounts. Finally, there was no omission of facts. Dean Witter was not required, and may not have been at liberty to provide copies of account statements upon request, absent a subpoena or discovery procedures arising from the matrimonial or other state court proceedings. Accordingly, as Vasile has failed to plead the initial element of fraud, a material misrepresentation or omission of fact, and the facts as alleged do not support such a showing, the claim of fraud is hereby dismissed. Having failed to make a prima facie showing of fraud, Vasile’s conspiracy claim must also be summarily dismissed. 4. Liability under RICO Vasile also raises allegations of a RICO violation in his complaint and supporting documents, suggesting that Dean Witter’s brokers engaged in a criminal enterprise, money laundering, racketeering, mail fraud, and embezzlement and other crimes. As discussed supra, there is no private right of action for the alleged crimes, however, a civil RICO claim can arise from criminal behavior. The Supreme Court has explained that “RICO renders criminally and civilly liable ‘any person’ who uses or invests income derived ‘from a pattern of racketeering activity1 to acquire an interest in or to operate an enterprise engaged in interstate commerce, [18 U.S.C.] § 1962(a); who acquires or maintains an interest in or control of such an enterprise ‘through a pattern of racketeering activity,’ [18 U.S.C.] § 1962(b); who, being employed by or associated with such an enterprise, conducts or participates in the conduct of its affairs ‘through a pattern of racketeering activity,’ [18 U.S.C.] § 1962(c); or, finally, who conspires to violate the first three subsections of [18 U.S.C.] § 1962, § 1962(d).” H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 232-33, 109 S.Ct. 2893, 2897, 106 L.Ed.2d 195 (1989); see Azrielli v. Cohen Law Offices, 21 F.3d 512, 520 (2d Cir.1994). Additionally, “RICO provides for drastic remedies: conviction for a violation of RICO carries severe criminal penalties and forfeiture of illegal proceeds, 18 U.S.C. § 1963 ... and a person found in a private civil action to have violated RICO is liable for treble damages, costs, and attorney’s fees, 18 U.S.C. § 1964(c).” H.J. Inc., 492 U.S. at 233, 109 S.Ct. at 2897. To state a claim for RICO damages, a plaintiff has two pleading burdens. First, a plaintiff has to allege the existence of seven constituent elements: “(1) that the defendant (2) through the commission of two or more acts (3) constituting a ‘pattern’ (4) of ‘racketeering activity’ (5) directly or indirectly invests in, or maintains an interest in, or participates in (6) an ‘enterprise’ (7) the activities of which affect interstate or foreign commerce.” Moss v. Morgan Stanley, Inc., 719 F.2d 5, 17 (2d Cir.1983), cert. denied 465 U.S. 1025, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984); see Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496-497, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985); United States v. Private Sanitation Indus. Ass’n, 793 F.Supp. 1114, 1125-26 (E.D.N.Y.1992). Second, a plaintiff has to allege that he was “injured in his business or property by reason of a violation of section 1962.” Moss v. Stanley, Inc., 719 F.2d at 17; see Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. at 496-497, 105 S.Ct. at 3285 (proclaiming that a plaintiff must prove that “he has been injured in his business or property by the conduct constituting the violation”). In the instant action, Dean Witter contends that the Plaintiff has faded to satisfy his burden regarding any of the elements of a RICO claim, and specifically addresses the failure to allege a pattern of racketeering activity consisting of the commission of at least two predicate acts. The Court will address each of these arguments. To constitute a pattern, the RICO predicate acts (1) must be related, and (2) reveal (a) continued, or (b) the threat of continued, unlawful conduct. See Azrielli, 21 F.3d at 520. As the Supreme Court has explained: A pattern is not formed by sporadic activity, ... and a person cannot be subjected to the sanctions of [RICO] simply for committing two widely separated and isolated criminal offenses .... Instead, the term “pattern” itself requires the showing of a relationship between the predicates, ... and of the threat of continuing activity .... It is this factor of continuity plus relationship which combines to produce a pattern. H.J. Inc., 492 U.S. at 239, 109 S.Ct. at 2900 (emphasis in original)(internal quotes omitted); Azrielli, 21 F.3d at 520 (quoting H.J. Inc., 492 U.S. at 239, 109 S.Ct. at 2900). Similarly, the Second Circuit has explained that “[t]he purpose of the relationship and continuity requirements is to ‘prevent the application of RICO to the perpetrators of “isolated” or “sporadic” criminal acts.’ ” Azrielli, 21 F.3d at 520 (quoting United States v. Indelicato, 865 F.2d 1370, 1383 (2d Cir.)(en banc), cert. denied, 493 U.S. 811, 110 S.Ct. 56, 107 L.Ed.2d 24 (1989)). Multiple schemes, however, are not required for a pattern to be found, and further, there is no requirement that the predicate acts be discernable as separable episodes or transactions. See Com-Tech Assocs. v. Computer Assocs. Int’l 753 F.Supp. 1078, 1091 (E.D.N.Y.1990), aff'd, 938 F.2d 1574 (2d Cir.1991). Predicate acts are “related” for RICO purposes when they “have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.” Schlaifer Nance & Co., 119 F.3d at 97 (quoting H.J. Inc., 492 U.S. at 240, 109 S.Ct. at 2901). The Second Circuit has noted that [a]n interrelationship between acts, suggesting the existence of a pattern, may be established in a number of ways. These include proof of their temporal proximity, or common goals, or similarity of methods, or repetitions. The degree to which these ■factors establish a pattern may depend on the degree of proximity, or any similarities in goals or methodology, or the number of repetitions. Azrielli, 21 F.3d at 520 (quoting Indelicato, 865 F.2d at 1382). Further, for the relatedness element to be satisfied, the predicate acts must be related, directly or indirectly, to each other as well as to the enterprise. See United States v. Locascio, 6 F.3d 924, 943 (2d Cir.1993), cert. denied, 511 U.S. 1070, 114 S.Ct. 1645, 128 L.Ed.2d 365 (1994) (proclaiming that relatedness requirement is satisfied even if the predicate acts are not directly related to each other so long as both are related to the RICO enterprise in such a way that they become indirectly connected to each other); United States v. Long, 917 F.2d 691, 697 (2d Cir.1990). Continuity — the second element that must be shown for a pattern of racketeering activity to be established — requires allegations of “either an ‘open-ended’ pattern of racketeering activity, (i.e., past criminal conduct coupled with a threat of future criminal conduct) or a ‘elosed-ended’ pattern' of racketeering activity (i.e., past criminal conduct ‘extending over a substantial period of time’).” Schlaifer Nance & Co., 119 F.3d at 97 (quoting GICC Capital Corp. v. Technology Finance Group, Inc., 67 F.3d 463, 466, (2d Cir.1995)), cert. denied, 518 U.S. 1017, 116 S.Ct. 2547, 135 L.Ed.2d 1067 (1996). The Second Circuit went on to describe how to determine whether a threat of “open-ended” continuity exists. Id. “[A] court must examine the nature of either: (1) the predicate acts alleged, or (2) the enterprise at whose behest the predicate acts were performed.” Id. (citations omitted). For “close-ended” continuity, activity continuing for a matter of years is sufficient to satisfy “a substantial period of time.” Id. (citing Jacobson v. Cooper, 882 F.2d 717, 720 (2d Cir.1989)). Applying these standards to the case at bar, Vasile’s claims amount to the following: (1) Dean Witter had knowledge of the injunction restraining transfer of the account assets; (2) Dean Witter’s failure to comply with the restraining order prevented Vasile’s assets from being protected from embezzlement; (3) Dean Witter’s brokers conspired with Sheila Enright to embezzle funds belonging to Vasile and Robyn Enright, and in so doing engaged in mail fraud and wire fraud. As previously discussed, Dean Witter had no legal obligation to comply with the April 17, 1989 property restraint issued pursuant to DRL § 234. Mr. Vasile’s attorney had the opportunity to make application for a preliminary injunction enjoining Dean Witter from transacting any activity in the accounts in question. Further, because there is no evidence that the transactions were unauthorized, all claims of wire fraud and/or mail fraud must fail. “[T]he essential elements of a mail [or wire] fraud violation are (1) a scheme to defraud, (2) money or property [as the object of the scheme], and (3) use of the mails [or wires] to further the scheme.” United States v. Dinome, 86 F.3d 277, 283 (2d Cir.1996)(internal quotations omitted); 18 U.S.C. §§ 1341, 1343. In addition, there has been no showing of a scheme to defraud, or any conspiracy entered into by Dean Witter’s brokers in conjunction with Sheila Enright. This would require a showing that .the brokers and Enright entered into an agreement and committed a wrongful act in furtherance of the agreement. Ail Vasile can point to is that the brokers executed transactions on behalf of Sheila Enright and transferred her account from a California branch to a New York branch. In executing the transactions they were acting pursuant to instructions of the account holder. Repeatedly calling people embezzlers, conspirators or criminals, does not make it so. Embezzlement is the fraudulent appropriation of money by a person to whom such money had been entrusted or into whose hands it has lawfully come and that the person misappropriated the funds for his own purpose and that he did so with wrongful intent or deceit. There has been no allegation that Dean Witter benefitted by the transactions, or any showing of the specific criminal intent required. Because Vasile can prove no criminal activity was committed by Dean Witter, or establish the existence of a predicate act as set forth in 18 U.S.C. Section 1961(a), the RICO claim must fail. The specific acts in question, based upon Vasile’s contentions, occurred within the span of a few months in 1990. The acts did not constitute a RICO pattern and although they were related to the extent that they were transactions involving Enright’s accounts, they had no continuity as they did not extend over a substantial period of time, nor pose a threat of future criminal conduct. After construing the evidence in the light most favorable to the Plaintiff, the Court concludes that Vasile has failed to establish a single predicate act or the existence of a pattern of racketeering activity. Accordingly, the Court finds that a reasonable juror could not find a “pattern” of racketeering activity, and thus summary judgment is warranted on this ground. 5. UGMA Exemption As an additional and separate basis to dismiss Vasile’s complaint, Dean Witter raises the statutory exemption absolving brokers and financial institutions from liability for acting on instructions from the custodian. The Uniform Gifts to Minors Act governs transfers made before the end of 1996. Custodial transfers made thereafter are gov-emed by the Uniform Transfers to Minors Act. EPTL 7-6.1 et seq. The statutory exemption raised by Dean Witter is Section 7-4.6 of the Estates, Powers and Trust Law (“EPTL”), entitled “Exemption of third persons from liability.” Although courts have held that “[t]he policy of this section protects a broker in the broker’s reliance on instructions received from a custodian,” Feinberg v. Bache Halsey Stuart Inc., 61 AD.2d 135, 402 N.Y.S.2d 187, 189 (1st Dep’t 1978), the wisdom of the Second Circuit informs a cautionary reluctance, in part because the “meaning of section 7-4.6 is far from clear because that provision has rarely been interpreted by New York courts. Were a federal court deciding whether to assert pendent jurisdiction over a claim requiring interpretation of such a statute, its obscurity and the paucity of pertinent state judicial precedent would argue in favor of deferring in favor of the state courts.” Scott v. Long Island Sav. Bank, 937 F.2d 738, 742 (2d Cir.1991). Accordingly, and because it is unnecessary to decide, the Court will not determine whether EPTL § 7-4.6 absolves Dean Witter of liability in the instant matter. 6. Statute of Limitations Lastly, as a separate and independent basis to dismiss this action, Dean Witter asserts that Vasile’s claims are time-barred. A four-year statute of limitations applies to civil RICO actions. See Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 152, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987). A cause of action accrues under RICO at the time that the plaintiff “discovered or should have discovered the injury.” Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1102 (2d Cir.1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989). The New York statute of limitations for fraud is six years from the date of commission, see CPLR 213(8) (McKinney 1990), or two years from the date the plaintiff discovered, or should have discovered, the fraud, whichever is longer. CPLR 203(f), 213(8); see also Long Island Lighting Co. v. Imo Indus. Inc., 6 F.3d 876, 887 (2d Cir.1993). A claim for breach of fiduciary duty is governed by the underlying concomitant claim, thus, where it is a claim for an action to recover damages for any “injury to property,” pursuant to CPLR § 214(4), a three year statute of limitations applies. Under New York law, a six year limitations applies to a claim for breach of fiduciary duty only where the alleged breach “had its genesis in the contractual relationship of the parties.” Sears Roebuck & Co. v. Enco Assocs. Inc., 43 N.Y.2d 389, 396, 401 N.Y.S.2d 767, 771, 372 N.E.2d 555 (1977). The statute of limitations can be specified in the statute. For example, under ERISA, inapplicable to the case at bar, “a breach of fiduciary duty involving fraud or concealment, the three-year exception for actual knowledge does not apply, and a party has six years from the time it discovers the breach to bring an action. For all other breaches of fiduciary duty, a party can commence an action within six years of the time the breach occurred, unless the party has actual knowledge of the breach, in which case it must bring the action within three years of the time it learned of the breach.” Diduck v. Kaszycki & Sons Contractors, Inc., 874 F.2d 912, 919 (2d Cir.1989). When negligence is the basis upon which the breach is alleged, a three year statute of limitations applies. See Aaron Ferer & Sons Ltd., v. Chase Manhattan Bank, Nat’l Ass’n, 731 F.2d 112, 120 (2d Cir.1984). Here, the actions which Vasile maintains provides the basis for his claims, arose in the summer of 1990. Plaintiff initiated this suit on December 9, 1997, more than seven years later. Vasile contends that he first became aware of the true character -and scope of the conspiracy, and therefore the RICO claim, on September 18, 1997, based upon documents provided by NYSE counsel, Regina Dunne, which included the Dean Witter account statements. This claim is discredited by the testimony at a hearing before the Honorable Alan Osh-rin, dated September 9,1992, in which Vasile, represented by Anthony N. Del Rosso, Esq., brought an order to show cause based on newly discovered evidence that Sheila En-right committed fraud and was guilty of misrepresentation. The following exchange took place: Del Rosso: We found out about the fraud, I did, on August 13, 1992. My client was informed on August 17th, five days after I Court: But that was fraud that you could have ascertained prior to the Del Rosso: Who said so, Judge? Court: You claim in your papers that there was non-compliance by Mrs Vasile or Mrs. Enright with respect to a prior Order of Justice Fierro. (Ex. D at 5.) Then later on, the following discussion occurred: Court: Was your client represented by a lawyer? Del Rosso: I believe he was. Court: Okay. Did discovery take place? Del Rosso: As far as I know. I am not sure of that fact... Court: And your client relied — this is a matrimonial that went on for some two years, which was certainly acrimonious at best and he didn’t engage in discovery. He had counsel. (Ex. D at 14-15,17.) The Court then attempts to determine what would have happened to the stock if, as alleged, Sheila Enright sold shares in violation of the injunction. Court: Look at the Stipulation of Settlement, perhaps, sir, at — there it is, Page 12. “It is stipulated by and between Counsel and the respective parties hereto that this Court will immediately cause to be vacated and dissolved its injunction that heretofore were issued ... and the purpose and the necessity of the vacation of these two injunctions is an Order to secure funds from those accounts to satisfy the arrears concerning the mortgages due on the marital premises.” (Ex. D at 20.) After further questioning, the following dialogue occurred: Court: So it was her money used to satisfy a mortgage? Del Rosso: Well, that is part of the Stipulation of Settlement, Judge. Court: How was your client damaged if it was to be his stock that it (sic) was to be used to satisfy the mortgage? Del Rosso: He was supposed to get the stock. Court: And satisfy the mortgage from that stock, that is what it says. (Ex. D at 22.) Further on, Vasile’s attorney summarizes his position: Del Rosso: But I say there is fraud here and there is nothing in the stipulation [of settlement] that said it is divisible, therefore, the whole agreement must be vitiated by fraud. Court: Del Rosso: How did Mr. Vasile find out about the Dean Witter account? By me, okay. Court: Mr. Vasile had a lawyer at that time? Del Rosso: I can’t explain why the lawyer — you are speculating your Honor. Court: I am wondering why you didn’t serve a subpoena on Dean Witter. Del Rosso: You want to know something, it was told — Dean Witter told them that they could not get the information on her account because Norman Weiss communicated with them and so instructed them. Clearly amused by this explanation, the Court replies: Court: Mr. Weiss is more powerful than the Supreme Court of Suffolk County, okay. (Ex. D at 35-36.) Finally, Vasile’s attorney moves the Court to reconsider its ruling which denied continuance of a temporary restraining order, signed by Judge Gerard, protecting the prior marital assets in her possession. The Court ruled as follows: Court: Mr. Del Rosso, in view of the fact that I have some difficulty with your client’s position based on the Doctrine of Ratification as enunciated by the Court of Appeals in Beuetel and the Appellate division in the recent case of Krusik against Krusik and a whole bunch of other cases and you tell me that you obtained this information, recently, yourself, which leaves (sic) me to the inescapable conclusion this information was obtainable by Mr. Vasile prior to today.... Having read the papers, having listened to you orally argued (sic), having listened to Mrs. Phillips, at this juncture I do not believe that on balance a restraint of this broad nature is appropriate. Remember, sir, it is over two years since the Judgment of Divorce has passed. We said enough. I have made my ruling, [emphasis added] (Ex. D at 54-55.) It is patently obvious to this Court that the numerous submissions of Carmine Vasile, always stylized as “New Evidence,” should more accurately be denominated “New Opportunity to Present Old Evidence” because, as the aforementioned exchange makes clear, Vasile has been attempting to re-hash issues previously decided. It is true that Vasile was attempting to argue fraud with respect to the stock transactions on the part of Sheila Enright, a named party to the restraining order, a position with greater legal merit than the instant action, however, whether the order was lawfully in effect at the time of Enright’s transactions is not critical in deciding Dean Witter’s legal obligation. Although Vasile was not alleging fraud on the part of Dean Witter at the September 9, 1992 hearing, nothing has changed and no new evidence has emerged to suggest that Dean Witter’s involvement was anything more than processing the transactions. Vasile became aware, at the absolute latest, on or about August 17, 1992, that Enright possibly sold stock in derogation of the restraining order. At that moment, Vasile was aware that he had previously notified Dean Witter of the restraining order and he was aware that Dean Witter allowed Sheila Enright to sell shares. His claims today, accusing Dean Witter of conspiring with Sheila Enright to embezzle funds from the accounts, offers no more factual support than that which he was aware of then. It is true that he may not have known of the specific transactions which occurred in May 1990, however, Dean Witter’s involvement has remained constant, it followed the directions of Sheila Enright, the account holder. Moreover, Justice Oshrin decided on September 9, 1992 that the account information was previously and readily available via subpoena. It is therefore this Court’s conclusion that through the exercise of reasonable diligence, Vasile, and/or his prior attorney, could have discovered the Dean Witter transactions occurring in or about May 1990, which form the basis for Vasile’s claims in the instant action. Accordingly, Vasile’s RICO claims are time-barred under the applicable statute of limitations. Moreover, his claims for fraud and for breach of fiduciary duty, even when granted the most liberal date of discovery, are violative of the applicable statutes of limitation. Accordingly, because Plaintiffs claims against Dean Witter are time-barred, they must be dismissed. Vasile’s motion in opposition to Dean Witter’s motion to dismiss, does not refute, and as determined above cannot refute, any of the legal grounds upon which this action must be dismissed. Rather, he alleges that Justice Fierro’s Order of May 9, 1990 was invalid and contained a forged signature of his counsel, because, it contains a “Yellontail.” Although Vasile has consistently attempted to blame every adverse ruling and all his legal woes on Norman Yellon’s notary certification, or lack thereof, such issues are immaterial and irrelevant to the matter before the Court. Indeed, the Court will not entertain, nor dignify, Vasile’s inane rants concerning the “Yellon-Gang Conspiracy,” of which, it now appears, I am the advocate, protector, accused ringleader and the “Federal-Judge-of-Choice.” As aptly indicated by Dean Witter, whether the “proper” May 9, 1990 Order of Judge Fierro is the copy provided by Dean Witter or the copy provided by Vasile is of no moment, either document repeats the critical language removing the restraining order and releasing the parties from its effect. Moreover, the fact that the decision was rendered upon an order does not preclude it from having the same effect as a judgment. “The modern rule is that an order made upon a motion has the same effect as a judgment, and that although technical and historical distinctions might be drawn between final orders and final judgments, the doctrine of res judicata applies to both.” Thaler v. Casella, 960 F.Supp. 691, 698 (S.D.N.Y.1997) (quoting 73 N.Y.Jur.2d “Judgments” § 354 (1996)); see also Litz Enterprises, Inc. v. Standard Steel Indus., Inc., 57 A.D.2d 34, 394 N.Y.S.2d 765, 768-69 (4th Dep’t 1977) (a party will not be denied the benefits of res judicata where a final order on the merits has not been reduced to a formal judgment). All other unaddressed claims raised by Vasile have been reviewed and are without merit and are accordingly dismissed. In conclusion, and for all the aforementioned reasons, Defendant Dean Witter’s motion to dismiss all the claims against it is granted in its entirety and Vasile’s suit against Dean Witter is dismissed with prejudice. V. Honorable Alan D. Oshrin and Honorable William L. Underwood Justices Oshrin and Underwood move to dismiss this action in its entirety on numerous independent grounds, including: (1) the doctrine of res judicata; (2) the Eleventh Amendment; (3) the Rooker-Feldman doctrine; (4) the doctrine of absolute judicial immunity; (5) the doctrine of qualified immunity; (6) the action is time-barred under the applicable statute of limitations; and (7) Plaintiff fails to state a claim upon which relief can be granted. In addition, Plaintiffs summary judgment motion is attacked as procedurally barred for being commenced within 20 days of initiating suit. Vasile’s suit alleges, among numerous other claims, that Justice Underwood’s Order, dated October 6, 1997, in which he enjoined Vasile from commencing any action or proceeding against Sheila Enright, without prior court approval, was an unconstitutional, invalid, ex-parte Order representing an ongoing violation of Vasile’s civil rights and was in furtherance of an interstate fraud and conspiracy commenced in 1990. Vasile alleges that Justice Oshrin was advised of numerous crimes against Vasile’s person and was advised that Justice Underwood broke the law while breaching his ministerial duty by violating Vasile’s civil rights, and by failing to act in a judicial capacity to protect Vasile against Justice Underwood’s malicious abuse of legal process in the clear absence of jurisdiction, and by rejecting Vasile’s pleas for judicial intervention, and by failing to remove Justice Underwood and by denying Vasile’s attempt to amend his pleadings, Justice Osh-rin broke the law and breached his ministerial duty. In addition, Vasile alleges a nefarious conspiracy between Justices Underwood, Oshrin and Defendant Weiss. Although the Justices raise numerous grounds for dismissal, the Court will touch upon three legal theories which mandate dismissal. I. Absolute Judicial Immunity: As an initial barrier to suit, encompassing all the allegations raised against Justices Oshrin and Underwood, is the defense of absolute judicial immunity. It is a well settled rule that a judge is absolutely immune from suit for any actions taken within the scope of his judicial responsibilities. See, e.g., Mireles v. Waco, 502 U.S. 9, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991); Butz v. Economou, 438 U.S., 478, 511-13, 98 S.Ct. 2894, 2913-14, 57 L.Ed.2d 895 (1978); Stump v. Sparkman, 435 U.S. 349, 355-57, 98 S.Ct. 1099, 1104-05, 55 L.Ed.2d 331 (1978); Maestri v. Jutkofsky, 860 F.2d 50, 52-53 (2d Cir.1988), cert. denied, 489 U.S. 1016, 109 S.Ct. 1132, 103 L.Ed.2d 193 (1989). A long established doctrine, judicial immunity is necessary because “principled and fearless decision-making” will be compromised if a judge “fear[s] that unsatisfied litigants may hound him with litigation charging malice or corruption.” Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967). More than one hundred years ago the Supreme Court noted, “Pliability to answer to everyone who might feel himself aggrieved by the action of the judge ... would destroy that independence without which no judiciary can be either respectable or useful.” Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347, 20 L.Ed. 646 (1871). ■ Absolute judicial immunity applies to all judges and other persons engaged in a judicial function, that is the “performance of the function of resolving disputes between parties, or of authoritatively adjudicating private rights,” Burns v. Reed, 500 U.S. 478, 498-502, 111 S.Ct. 1934, 1946-47, 114 L.Ed.2d 547 (1991), and provides absolute immunity from damage suits for their judicial acts, unless such acts are done in the clear absence of all jurisdiction. The Supreme Court has emphasized that jurisdiction over the subject matter is the key element conferring immunity in a particular circumstance, and the inquiry is whether a defendant judge had jurisdiction over the subject matter before him when he took the challenged action. However, because “some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction,” Stump, 435 U.S. at 356-57, 98 S.Ct. 1099, 1105, 55 L.Ed.2d 331 (quoting Bradley, 80 U.S. at 351, 13 Wall. 335), the scope of the judge’s jurisdiction must be construed broadly where the issue is the immunity of the judge. “A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction.’” Id. An additional limitation is that a judge is immune only for actions performed in his judicial capacity. 435 U.S. at 360-63, 98 S.Ct. at 1106-08; see also Maestri v. Jutkofsky, 860 F.2d 50, 53 (2d Cir.1988). Thus, because the rule of absolute judicial immunity is designed to protect the integrity of the judicial process, by allowing judges to “be at liberty to exercise their functions with independence and without fear of consequences,” Pierson, 386 U.S. at 554, 87 S.Ct. at 1218, the rule applies even where the judge is accused of acting maliciously or corruptly, id., however erroneous the act may have been, however injurious in its consequences it may have proved to the plaintiff, and “despite any ‘informality with which [the judge] proceeded,’ and ... any ex parte feature of the proceeding.” Cleavinger v. Saxner, 474 U.S. 193, 200, 106 S.Ct. 496, 500, 88 L.Ed.2d 507 (1985) (quoting Sparkman, 435 U.S. at 363 and n. 12, 98 S.Ct. at 1108 and n. 12). The Supreme Court has applied a “functional” approach in deciding whether an act is judicial for purposes of immunity. Cleavinger, 474 U.S. at 201-02, 106 S.Ct. at 501. The.issue of “immunity analysis rests on functional categories, not on the status of the defendant. Absolute immunity flows not from rank or title or ‘location within the Government,’ but from the nature of the responsibilities of the individual official.” Id. (citations omitted). In deciding whether absolute judicial immunity applies a court should consider the nature of the act taken, namely whether it is a function normally performed by a judge, and the expectations of the parties, namely whether they dealt with the judge in his judicial capacity. Sparkman, 435 U.S. at 362, 98 S.Ct. at 1107. Other relevant factors include (i) the adversary nature of the process, (ii) the correetability of error on appeal, (iii) the importance of precedent, and (iv) the presence of safeguards that reduce the need for private damage actions as a means of controlling unconstitutional conduct. Cleavinger, 474 U.S. at 202, 106 S.Ct. at 501. In the instant action, although Vasile charges the Justices with perjury, subornation, conspiracy, a