Bernard H. GLATZER, Plaintiff-Appellant, v. Hon. John A. BARONE, Hon. Larry S. Schachner, Hon. Jonathan Lippman, Defendants-Appellees, 394 F. App'x 763

SUMMARY ORDER Appellant Bernard H. Glatzer, an attorney proceeding pro se, appeals the district court’s judgment, granting the Defendants’ motion to dismiss his 42 U.S.C. § 1983 complaint for lack of subject matter jurisdiction, and the district court’s denial of his post-judgment motion for reconsideration. 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’s dismissal of a complaint under Fed. R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, see Scherer v. Equitable Life Assur.

Soc’y, 347 F.3d 394, 397 (2d Cir.2003), and review the district court’s denial of a motion for reconsideration for abuse of discretion, see RJE Corp. v. Northville Indus. Corp., 329 F.3d 310, 316 (2d Cir.2003) (per curiam). Glatzer argues on appeal that the district court erred by abstaining from exercising subject matter jurisdiction over his claims pursuant to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Under Younger, federal courts must abstain from exercising subject matter jurisdiction over federal constitutional claims that involve or call into question ongoing state proceedings.

See Younger, 401 U.S. at 43-44, 91 S.Ct. 746. Abstention is mandatory where: (1) “there is an ongoing state proceeding; (2) an important state interest is implicated; and (3) the plaintiff has an avenue open for review of constitutional claims in the state court.” Liberty Mutual Ins. Co. v. Hurlbut, 585 F.3d 639, 647 (2d Cir.2009) (quoting Philip Morris, Inc. v. Blumenthal, 123 F.3d 103, 105 (2d Cir.1997)).

Glatzer asserts that Younger should not preclude his claims because there was no ongoing state proceeding, and that New York State courts did not provide him with an opportunity to raise his federal constitutional claims. He is mistaken. First, the district court’s judgment dismissing Glatzer’s complaint was entered on March 30, 2009, more than a month before the New York Appellate Division, First Department, dismissed his state court appeals; the district court’s May 2009 decision merely clarified the basis for its March 2009 decision.

Thus, at the time the district court entered judgment, his state appellate proceedings were still pending. More significantly, even assuming, arguendo, that the Appellate Division dismissed his appeals prior to the district court entering its decision, his state court proceedings were still pending, as he remained free to appeal to the New York Court of Appeals.

Fundamental to Younger is the principle that “a party ... must exhaust his state appellate remedies before seeking relief in the District Court[;] ... the considerations of comity and federalism which underlie Younger permit no truncation of the exhaustion requirement merely because the losing party in the state court ... believes that his chances of success on appeal are not auspicious.” Huffman v. Pursue, Ltd., 420 U.S. 592, 608, 610, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975).

That Glatzer may believe that an appeal to the Court of Appeals was futile, and that, by consequence, his state proceedings were effectively completed, is irrelevant. Because he could still seek leave to appeal to the Court of Appeals at the time the district court entered judgment, the district court correctly found that the first Younger criterion was satisfied. Second, Glatzer’s challenge to the third Younger prong is unavailing.

He maintains that because the Appellate Division did not explicitly analyze his federal constitutional claims in its order dismissing his appeals, that demonstrates there was no avenue open for review of his constitutional claims in the state court. However, “[t]he relevant question under Younger is whether the state’s procedural remedies could provide the relief sought [not] ... whether the state will provide the constitutional ruling which the plaintiff seeks.” Spargo v.

New York State Comm’n on Judicial Conduct, 351 F.3d 65, 79 (2d Cir.2003) (internal quotation marks and citations omitted) (emphasis in Spargo). Nothing in the Appellate Division’s order suggests that, as a procedural matter, that court was incapable of providing the constitutional relief that Glatzer sought; the order simply indicates that, based on that court’s review of the parties’ filings, Glat-zer was not entitled to relief.

Finally, insofar as Glatzer seeks an exception to Younger based on the Defendants’ purported egregious conduct, there is no evidence, other than Glatzer’s conclu-sory allegations, to support this assertion.

Courts have recognized two narrow exceptions to Younger: (1) bad faith — “cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction”; and (2) extraordinary circumstances — where “ ‘extraordinary circumstances’ render the state court incapable of fairly and fully adjudicating the federal issues before it, ... creating an extraordinarily pressing need for immediate federal equitable relief.” Diamond “D” Const. Corp. v. McGowan, 282 F.3d 191, 198-202 (2d Cir.2002).

Glatzer cannot prevail on the first exception because, like the Younger doctrine itself, “the genesis of the so-called bad faith exception was in the context of criminal prosecutions,” and thus, to invoke this exception, “a federal plaintiff must show that the state proceeding was initiated with and is animated by a retaliatory, harassing, or other illegitimate motive.” Id. at 198-99. Here, it was Glatzer, not the state, who initiated all of the relevant state court proceedings.

As to the second exception, although Glatzer repeatedly accuses the Defendants of bias and “extreme resentment,” he alleged no facts to support these accusations apart from the fact that the Defendants denied him the relief that he sought. We have considered all of Glatzer’s remaining arguments and found them to be without merit. Accordingly, we AFFIRM the district court’s judgment, and, on that basis, AFFIRM the district court’s order denying Glatzer’s post-judgment motion.