Opinion
No. 79092016.
02-07-2017
Panagiotis ARMATAS, Plaintiff, v. Alan C. KESTENBAUM, Qiana Smith–Williams, Defendants.
The following papers numbered 1 to 6 read on this motion by defendant Alan C. Kestenbaum for, inter alia, an order pursuant to CPLR 3211(a)(5) dismissing the complaint against him on collateral estoppel grounds
| Papers | Numbered |
|---|---|
| Notice of Motion–Affidavits–Exhibits 1 | |
| Answering Affidavits–Exhibits 2 | |
| Reply Affidavits | 3 |
| Memoranda of Law | 4–6 |
Upon the foregoing papers it is ordered that this motion by defendant Alan C. Kestenbaum is decided as follows:
I. The Facts
Elena Maroulleti established Aktina Productions for the purpose of promoting and preserving Greek and Cypriot culture through the media, and she hosted a radio program every week. Maroulletti alleges that plaintiff Panagiotis Armatas threatened her and her family during a phone call in connection with what he believed a guest said against him on her show. Armatas denied making any threats against Maroulletti or her family. On July 25, 2006, Maroulleti filed a complaint with the New York Police Department (N.Y.PD), claiming that Armatas called her "cell phone several times stating ‘I will do things to you and your family you don't even know,’ " "causing annoyance and alarm." Eric Christophersen, an NYPD detective, arrested Armatas at his home where the latter's children, Alexander and Evangelos, eight and six respectively, were present. The police took Armatas and his children (for whom no adult supervision could be found) to the station house where he was fingerprinted, given a desk appearance ticket, and released. On August 1, 2006, after Christophersen contacted the Queens County District Attorney's Office, he signed a criminal court complaint prepared by the DA's Office charging Armatas with aggravated harrassment and harrassment. In August 2007, the DA's Office discontinued the prosecution against Armatas because Maroulleti would no longer cooperate.
On January 22, 2008, Armatas began an action in in the United States District Court for the Eastern District of New York (Armatas v. Maroulleti, No. 08–CV–310 SJF RER). asserting that the City of New York, NYPD, and Maroulleti had violated his constitutional rights, had violated 42 U.S.C. § 1983, and had committed the state torts of false arrest, malicious prosecution, and intentional infliction of emotional distress. He also alleged that Maroulleti had made a false police report against him. Armatas filed an amended complaint on July 29, 2009, adding individual NYPD officers as defendants, who he asserted were liable for violating his civil rights and liable for false arrest, battery, negligence, intentional infliction of emotional distress, and malicious prosecution. Armatas also asserted causes of action on behalf of his children.
Attorney Alan C. Kestenbaum, who is one of the defendants in the instant action, represented Maroulleti in the federal case.
Maroulleti and the city defendants moved for summary judgment on June 14, 2010. On September 17, 2010, federal district judge Sandra J. Feuerstein referred both motions to a magistrate for a report and recommendation.
The magistrate recommended the grant of summary judgment to the City of New York and city related defendants. He also recommended the grant of summary judgment to Maroulletti on all Section 1983 claims and on some of the state law claims.The magistrate found that "Armatas concedes that the Section 1983 claims must be dismissed since Maroulleti is a private citizen, who was not acting under the color of state law." (Armatas v. Maroulleti, 2010 WL 4340437, 5, report and recommendation adopted in part, 2010 WL 4340334, aff'd in part, 484 F. App'x 576.)
The district judge adopted the magistrate's report to the extent that it recommended the grant of the city defendants' motion for summary judgement in its entirety and recommended the grant of Maroulleti's motion for summary judgment on all federal claims, but the district judge, declining to exercise pendent jurisdiction, dismissed the state law claims against Maroulleti for lack of subject matter jurisdiction. (Armatas v. Maroulleti, 2010 WL 4340334,, aff'd in part, 484 F. App'x 576.) On appeal, on May 30, 2012, the United States Court of Appeals for the Second Circuit affirmed the judgment of the district court as to the claims brought by Armatas on his own behalf and deferred a decision as to the claims brought by Armatas on behalf of his minor children pending the appearance of counsel representing the children. (Armatas v. Maroulleti, 484 F. App'x 576.) The Supreme Court of the United States denied Armatas' petition for writ of certiorari. (Armatas v.. Maroulleti, 133 S.Ct. 1727.)
Pursuant to an order dated February 4, 2014, the district judge denied a motion by Armatas to vacate the judgment on the ground that prior judicial rulings in the case showed religious bias which required recusal. (Armatas v. Maroulleti, 2014 WL 455250.)
On January 8, 2014, Armatas filed a motion for contempt against Maroulleti, and her attorney in the federal case, Alan C. Kestenbaum, pursuant to Rule 56(h) of the Federal Rules of Civil Procedure"for submitting affidavits and declarations in bad faith." In denying the motion pursuant to a decision dated July 24, 2014, the federal judge noted: "Plaintiff has a history of filing similar motions for sanctions in this action, all of which have been denied." (Armatas v. Maroulleti, 2014 WL 3696232, 2.)
Pursuant to a decision dated September 21, 2015, the federal district judge denied Armatas' third motion for reconsideration, his cross motion for an order, inter alia, directing Maroulleti to recant, and Rule 60(d) motion for the vacatur of the judgment. The court found a similarity to previous motions by Armatas based on the alleged submission of affidavits and declarations in bad faith. The court added: "Plaintiff's Rule 60(d) Motion is also meritless, as it contains only conclusory assertions and speculation regarding the alleged falsity of the underlying police report and other filings in this Court, which are unsubstantiated and have been previously addressed by this Court in its Second Order. Plaintiff has presented no evidence, much less clear and convincing evidence, that a fraud has been perpetrated on this Court." (Armatas v. Maroulleti, 2015 WL 5561177, 3.)
There subsequently ensued (1) a motion by Armatas for reconsideration of the court's September 21, 2015 order, (2) a cross motion by the defendants' for sanctions, including a filing injunction, (3) a request by Armatas for reconsideration and motion for reconsideration of the denial of his prior motion for recusal and (4) Armatas' motion for reconsideration of the court's July 24, 2014 order denying his second motion for reconsideration and a request for a ruling on his cross motion. Pursuant to a decision dated June 21, 2016, the federal court denied Armatas' motions and granted the defendants' motion for sanctions. (See, Armatas v. Maroulleti, 2016 WL 3460367.) The court noted: "The Fourth Motion for Reconsideration seeks re-examination of the 9/21/15 Order denying plaintiff's motion pursuant to Rule 60(d). The gravamen of this motion is plaintiff's repeated allegations regarding the fabrication of evidence by defendants, a contention that has been rejected by the Court time and time again. " (Armatas v. Maroulleti, 2016 WL 3460367, 3. [emphasis added].) The court added: "Plaintiff's claims are baseless, and his actions of repeatedly raising the same claims despite the Court's rulings and express warnings compel the conclusion that the motions are motivated by an improper purpose, namely harassment of defendants. Accordingly, plaintiff will be barred from filing any additional papers in this case, 08–CV–0310, and any materials received by the Court will be rejected without docketing." (Armatas v. Maroulleti, 2016 WL 3460367, 4.) The court also directed Armatas "to show cause, by filing an affidavit on or before July 12, 2016, why an order should not issue enjoining him from filing any new civil action or proceeding in federal court against these defendants and their counsel without first obtaining leave of the Court * * *." (Armatas v. Maroulleti, 2016 WL 3460367, 5.)
Effectively blocked from filing any further papers in federal court against the defendants and their attorneys, on September 7, 2016, Armatas began this pro se action against attorney Kestenbaum and Qiana Smith Williams (an attorney employed in the Law Department of the City of New York) in this court by the filing of a summons and a complaint. The complaint alleges that the defendants violated Judiciary Law § 487 by, inter alia, (1) filing fraudulent papers in the federal district and appellate court, (2) making false statements to the federal court, and (3) representing clients who the attorneys knew were defrauding the federal court.
Judiciary Law § 487, "Misconduct by attorneys," provides in relevant part: "An attorney or counselor who: 1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party * * *Is guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action." (See, Brookwood Companies, Inc. v. Alston & Bird LLP, –AD3d–,–NYS3d–, 2017 WL 367391.)
"Where, as here, evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one * * *." (Hallwood v. Incorporated Village of Old Westbury, 130 AD3d 571, 572 ; Agai v. Liberty Mut. Agency Corp., 118 AD3d 830 ; Fishberger v. Voss, 51 AD3d 627.) In the case at bar, the documentary evidence submitted by defendant Kestenbaum demonstrates that plaintiff Armatas does not have a viable cause of action against him for violation of Judiciary § 487. The documentary evidence demonstrates that Kestenbaum's actions in the federal court were not a proximate cause of an injury to him. (See, Nason v. Fisher, 36 AD3d 486, 487, ["The cause of action for false representation in violation of Judiciary Law § 487 was deficient for failure to establish * * *that such alleged conduct was the proximate cause of any loss"]; Jaroslawicz v. Cohen, 12 AD3d 160 [no pleading of pecuniary damages resulting from the alleged violation]; Havell v. Islam, 292 A.D.2d 210, 210, [allegations did not establish that the actions of the attorney defendants caused plaintiff damages ].) Armatas conceded in the district court that his federal claims against Maroulleti had no merit, and the federal judge did not dismiss his state tort claims against her on the merits.
Kestenbaum is also entitled to the dismissal of the complaint on the ground of collateral estoppel. "The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same * * *." (Ryan v. New York Telephone Co., 62 N.Y.2d 494, 500 ; Parker v. Blauvelt Volunteer Fire Co., Inc., 93 N.Y.2d 343 ; Altegra Credit Co. v. Tin Chu, 29 AD3d 718 ; Sam v. Metro–North Commuter Railroad, 287 A.D.2d 378.) Armatas' claims of fraud and deceit perpetrated by Kestenbaum and/or his client were repeatedly decided against him by the federal court, and, thus, the doctrine of collateral estoppel bars this action. (See, Gillen v. McCarron, 126 AD3d 670, 671 ["the defendants established that the plaintiff was aware of the alleged violations of Judiciary Law § 487 when they occurred, and addressed most of them in the course of making applications for sanctions against the defendants in the prior actions and proceedings"].)
Accordingly, the branch of the motion by defendant Alan C. Kestenbaum to dismiss the complaint pursuant to CPLR3211(a)(5) and (7) as against him is granted, and the complaint as against defendant Alan C. Kestenbaum is dismissed, and the action is severed and continued as against the remaining defendant.
The branches of the motion for sanctions and an injunction prohibiting plaintiff Panagiotis Armatas from bringing further actions against defendant Kestenbaum without leave of court are granted solely to the extent that plaintiff Armatas is admonished that frivolous conduct may lead to sanctions against him.