Opinion
113593/03.
Decided June 21, 2005.
By decision and order dated March 29, 2004, this court granted defendants' motion to dismiss the complaint in its entirety, on the ground that the complaint was barred by the doctrines of res judicata and collateral estoppel. Additionally, the court referred to a Special Referee, to hear and report, "the issues of whether or not plaintiff's conduct is frivolous and, if so, the amount of costs and/or sanctions that are warranted."
Following a hearing, Special Referee Lancelot B. Hewitt concluded, in a report dated November 9, 2004 [ hereinafter Special Referee's Report], that plaintiff's conduct was frivolous, in that plaintiff commenced a second action (the instant action) against defendants which alleged the same claims as those previously brought against defendants and dismissed. In addition, the Special Referee noted that defendants had submitted evidence that plaintiff had also brought a "third action" against defendants' counsel "in an effort to re-litigate defendants' summary judgment motion." Special Referee's Report at p. 5 n. 4. This action was ultimately dismissed as well.
The Special Referee further found that plaintiff had engaged in other frivolous conduct at various points in the litigation of this matter. For example, the Special Referee credited the testimony of Dean R. Nicyper, Esq., counsel for defendants, as well as Cynthia R. Watkins, of counsel for defendants, who both testified that plaintiff's deposition of August Uribe (who came to said deposition from California) was cut short when the court reporter learned that plaintiff had misrepresented himself as a lawyer and plaintiff then refused to assure payment to the court reporter for the deposition services rendered. Additionally, the Special Referee found that "the documentary evidence corroborates Nicyper's testimony, and that it further supports defendants' claim for sanctions against Melnitzky." Special Referee's Report at p. 8. Specifically, Nicyper had testified that plaintiff had made multiple motions which raised "indecipherable" issues, costing defendants' law firm "enormous amounts of time, as well as expense," to answer. Id. at p. 4. In support of that assertion, defendants submitted documentation of plaintiff's prior motions for consideration by the Special Referee and this court. In conclusion, the Special Referee found that plaintiff had "offered no defense" to defendants' allegation that his conduct was frivolous, and the imposition of the following sanctions against plaintiff was therefore warranted:
(1) a monetary sanction in the amount of $4,500 (the defendants requested sanctions in the amount of $100,000); and (2) an injunction preventing plaintiff from bringing any further actions against defendants or their current attorneys, as a pro se litigant, without first obtaining judicial approval. Id. at pp. 8-9.
Defendants now move to confirm the report and findings of the Special Referee pursuant to CPLR § 4403, and plaintiff opposes this motion and asks this court to recuse itself or, in the alternative, to hold a new hearing pertaining to the asserted frivolity of plaintiff's conduct and the appropriateness of sanctions against plaintiff.
"[I]t is well-established that the report of a Referee shall be confirmed whenever the findings contained therein are substantially supported by the record and the Referee has clearly defined the issues and resolved matters of credibility." Kaplan v. Einy, 209 AD2d 248, 251 (1st Dept. 1994) (internal citations omitted). Here, the Special Referee's determination was amply supported by the transcript of the hearing, as well as defendants' submissions to the Special Referee of plaintiff's filings in this matter.
As the Appellate Division has held, [P]ublic policy mandates free access to the courts . . . Nonetheless, a litigious plaintiff pressing a frivolous claim can be extremely costly to the defendant and can waste an inordinate amount of court time, time that this court and the trial courts can ill afford to lose. . . . Thus, when, as here, a litigant is abusing the judicial process . . . solely out of ill will or spite, equity may enjoin such vexatious litigation.
Sassower v. Signorelli, 99 AD2d 358, 359 (2nd Dept. 1984) (internal citations omitted). Thus, "[w]hen it becomes clear that the courts are being used as a vehicle of harassment by a 'knowledgeable and articulate experienced pro se litigant' who asserts the same claims repeatedly in slightly altered guise, the issuance of an injunction is warranted." Kane v. City of New York, 468 F. Supp. 586, 590 (S.D.NY 1979) (internal citation omitted), aff'd, 614 F.2d 1288 (2nd Cir. 1979). See also Matter of Madhu S.V. Taijwaite S., 14 AD3d 513, 514-15 (2nd Dept. 2005); Muka v. New York State Bar Ass'n, 120 Misc 2d 897, 903-905 (S.Ct. Tompkins Cty. 1983). Thus, the court possesses the authority to issue the sanction recommended by the Special Referee, that of enjoining plaintiff from bringing any further actions against defendants or their attorneys without leave of this court. On this record, the court finds this sanction to be appropriate.
The court has reviewed plaintiff's cross-motion for recusal and finds it to be unavailing, insofar as the basis for plaintiff's motion is his dissatisfaction with the prior ruling of this court, that the instant action is duplicative of plaintiff's prior cause of action. However, mere "dissatisfaction" with the prior rulings of the court, absent more, is insufficient to meet that burden. See supra, Ficarola v. Town Bd. Gov't., 276 AD2d at 666.
Judiciary Law § 14 prohibits a judge from presiding over a case "to which he is a party, or in which he has been attorney or counsel, or in which he is interested, or if he related by consanguinity or affinity to any party to the controversy within the sixth degree." Plaintiff, however, has set forth no such grounds in his cross-motion; accordingly, this motion is directed solely to this court's discretion. Ogust v. 451 Broome St. Corp., 4 AD3d 109 (1st Dept. 2004); Herald v. Herald, 305 AD2d 1080 (4th Dept. 2003); Ficarola v. Town Bd. Gov't., 276 AD2d 666 (2nd Dept. 2000).
Accordingly, it is hereby
ORDERED that plaintiff's motion to confirm the findings of Special Referee Lancelot B. Hewitt, dated November 9, 2004, are confirmed; and it is further
ORDERED that plaintiff shall pay to defendants, within thirty (30) days of defendants' service of this decision and order, the sum of $4,500 as sanctions for plaintiff's frivolous conduct; and it is further
ORDERED that plaintiff shall hereinafter be enjoined from bringing any further actions against defendants or their current attorneys, as a pro se litigant, without first obtaining judicial approval from this court.
This shall constitute the decision and order of the court.