Summary
upholding dismissal of claims under Judiciary Law § 487 relating to statements which "were made in the course of judicial proceedings, and were material and pertinent to the issue to be resolved in those proceedings" making them "absolutely privileged"
Summary of this case from Richmond v. Caruso (In re Richmond)Opinion
467 150972/14
03-10-2016
Joan C. Lipin, Plaintiff-Appellant, v. David E. Hunt, Defendant, Danske Bank, et al., Defendants-Respondents.
Joan C. Lipin, appellant pro se. Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., New York (Francis J. Earley of counsel), for Danske Bank, respondent. Allegaert Berger & Vogel LLP, New York (Lauren Pincus of counsel), for ULF Bergquist, Evelyn F. Ellis, Dana A. Sawyer, Krainin Real Estate, Ann Susan Markatos, Robert Gary Lipin, David A. Berger, Allegaert Berger & Vogel LLP and Deborah Lovewell, respondents. Lewis Brisbois Bisgaard & Smith LLP, New York (Jordan Ehrlich of counsel), for Joseph R. Mazziotti and Mark K. Anesh, respondents.
Joan C. Lipin, appellant pro se.
Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., New York (Francis J. Earley of counsel), for Danske Bank, respondent.
Allegaert Berger & Vogel LLP, New York (Lauren Pincus of counsel), for ULF Bergquist, Evelyn F. Ellis, Dana A. Sawyer, Krainin Real Estate, Ann Susan Markatos, Robert Gary Lipin, David A. Berger, Allegaert Berger & Vogel LLP and Deborah Lovewell, respondents.
Lewis Brisbois Bisgaard & Smith LLP, New York (Jordan Ehrlich of counsel), for Joseph R. Mazziotti and Mark K. Anesh, respondents.
Order, Supreme Court, New York County (Anil C. Singh, J.), entered October 20, 2014, which, to the extent appealed from as limited by the briefs, granted defendants' motions to dismiss, denied plaintiff's motions for default judgments, imposed a permanent injunction on plaintiff enjoining her from commencing any actions in Supreme Court regarding her deceased father's estate without prior court approval, and denied plaintiff related relief, unanimously affirmed, without costs.
The Supreme Court properly dismissed the complaint without leave to replead. In relevant part, the court properly dismissed claims against defendant Danske Bank as barred by res judicata (Matter of Josey v Goord, 9 NY3d 386, 389-390 (2007]; Marinelli Assoc. v Helmsley-Noyes Co., 265 AD2d 1, 5-6 [1st Dept 2000]; see also Smith v Russell Sage Coll., 54 NY2d 185, 192 [1981]). Plaintiff has repeatedly unsuccessfully litigated, or could have litigated, the claims she asserts against Danske Bank, which relate to the disputed coin collection and administration of her father's estate (see Lipin v Hunt, ___ F Supp 2d ___, 2015 WL 1344406, *2, 2015 US Dist LEXIS 35700, *7-9 [SD NY 2015]).
The Supreme Court also properly dismissed claims against Judge Mazziotti on res judicata grounds. Plaintiff previously sued Mazziotti in Maine, and her suit was dismissed because her claims were based on actions Mazziotti had taken in his judicial capacity, for which he was "absolutely immune from suit" (Lipin v Ellis, ___ F Supp2d ___, 2007 WL 2198876, *9, 2007 US Dist LEXIS 54489, *32 [D Me July 26, 2007], affd ___ F Supp2d ___, 2007 WL 2701493, 2007 US Dist LEXIS 67417 [D Me Sept. 10, 2007], affd Lipin v Ellis, ___ F3d ___, 2008 US App LEXIS 28002 [1st Cir 2008]; see also Rosenstein v State of New York, 37 AD3d 208 [1st Dept 2007]). Plaintiff's claims in the instant suit similarly arise from Mazziotti's conduct as a judge who presided over proceedings regarding her deceased father's estate in Maine.
The court properly dismissed claims alleging a violation of Judiciary Law § 487 and related attorney misconduct against defendant attorneys Mark. K. Anesh, David A. Berger, and Berger's firm Allegaert Berger & Vogel LLP, who represented various defendants in prior suits brought by plaintiff, because plaintiff's allegations were based on statements that were "absolutely privileged," i.e., they were made in the course of judicial proceedings, and were material and pertinent to the issue to be resolved in those proceedings ( Bisogno v Borsa, 101 AD3d 780, 781 [2d Dept 2012]). To the extent that plaintiff challenges dismissal of her claims alleging that Anesh violated criminal laws, those claims were properly dismissed for lack of standing, since "the district attorney [] generally retains sole authority to prosecute such criminal activity ( Kinberg v Kinberg, 48 AD3d 387, 387 [1st Dept 2008], lv denied 11 NY3d 702 [2008]). The same is true to the extent that she asserts claims against Francis J. Earley, counsel for Danske Bank, who is not a named defendant in the action.
In light of defendants' timely pre-answer motions to dismiss, plaintiff was not entitled to default judgments against any defendants (see CPLR 3012[a]; CPLR 3211[f]).
Finally, in light of plaintiff's seemingly endless pursuit of the same frivolous claims in numerous courts, the court properly enjoined her from commencing any further actions without prior court approval (Bikman v 595 Broadway Assoc., 88 AD3d 455 [1st Dept 2011], lv denied 21 NY3d 856 [2013]; Jones v Maples, 286 AD2d 639 [1st Dept 2001], lv dismissed 97 NY2d 716 [2002]; see also Lipin v Hunt, ___ F Supp 2d ___, 2015 WL 1344406, *1 n 1, *11, 2015 US Dist LEXIS 35700, *2-5 n 1, *35-36 [SD NY 2015] [listing over 10 suits commenced by plaintiff relating to her late father's estate or its administration]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 10, 2016
CLERK