Opinion
No. 2013–02406.
10-06-2014
Louis PAAR and Suzanne DeLisi, Plaintiffs v. BAY CREST ASSOCIATION a/k/a Bay Crest Association Inc. a/k/a Bay Crest Homeowner's Association a/k/a Bay Crest Beach Association, Chief Executive Officers Known and Unknown, Directors Known and Unknown, George C. Pezold, Pezold Smith Hirschman Selvaggio LLC, Richard Hamburger and Hamburger Maxson Yaffe Wishod & McNally LLP, Defendants.
Louis Paar, Huntington, Plaintiff Pro Se. Louis Paar Naples, FL, Plaintiff Pro Se. Suzanne DeLisi, Huntington, Plaintiff Pro Se. Suzanne DeLisi, Naples, FL, Plaintiff Pro Se. Pezold Smith Hirschmann & Selvaggio LLC, Huntington, Defendant Pro Se and Attorneys for Defendant George Pezold. Hamburger Maxson Yafffe Knauer & McNally LLP, Melville, Defendant Pro Se and Attorneys for Defendant Richard Hamburger.
Louis Paar, Huntington, Plaintiff Pro Se.
Louis Paar Naples, FL, Plaintiff Pro Se.
Suzanne DeLisi, Huntington, Plaintiff Pro Se.
Suzanne DeLisi, Naples, FL, Plaintiff Pro Se.
Pezold Smith Hirschmann & Selvaggio LLC, Huntington, Defendant Pro Se and Attorneys for Defendant George Pezold.
Hamburger Maxson Yafffe Knauer & McNally LLP, Melville, Defendant Pro Se and Attorneys for Defendant Richard Hamburger.
Opinion
JEFFREY ARLEN SPINNER, J.
The within matter has been commenced by Plaintiffs, acting pro se, and it is but the most recent action filed by them, as the most recent component of a multiplicity of lawsuits brought by them against the Bay Crest Association together with various individuals. Having failed to prevail at the trial court level, Plaintiffs have filed numerous appeals as to those adverse decisions (all of which, to the best of this Court's knowledge, have been unsuccessful) to the Appellate Term of the Supreme Court, the Appellate Division of the Supreme Court and the Court of Appeals. This Court will not, at this late juncture, embark upon what would be a lengthy discourse as to the torturous background of the instant matter nor will it attempt to address those matters that have already been decided, invoking the doctrine of res judicata. Familiarity with the background herein by the parties is presumed; indeed, this Court will take judicial notice of its determinations under Suffolk County index nos.2006–01628, 2007–31111, 2009–40286 and 2013–02406 as well as the determinations of the Appellate Division of the Supreme Court in and for the Second Judicial Department, which are reported at 72 A.D.2d 713 (2010) and 99 A.D.2d 744 (2012) together with the determination by the New York Court of Appeals denying Plaintiffs' motion for leave to appeal, which order is dated February 19, 2013 and reported at 2013 N.Y. Slip Op 64872.
By Order dated February 6, 2014 (motion sequence 001), this Court granted the application of Defendants RICHARD HAMBURGER and HAMBURGER MAXSON YAFFE WISHOD & McNALLY LLP, made pursuant to 22 NYCRR § 130–1.1 by imposing a $ 10,000.00 sanction upon each of the Plaintiffs for engaging in frivolous conduct. The Court also dismissed the underlying complaint with prejudice under the aegis of res judicata and thereupon set the matter down for an inquest as to actual costs, if any, to be recovered by the moving Defendants. By Order dated March 26, 2014, this Court granted a money judgment in favor of the moving Defendants and against Plaintiffs in the amount of $ 54,098.33, representing reimbursement of actual costs and expenses incurred as permitted by the provisions of 22 NYCRR § 130–1.1. Said Order was entered pursuant to 22 NYCRR § 130–1.2.
Plaintiffs' most recent application (motion sequence 002) was brought by Order To Show Cause dated April 25, 2014 wherein they seek relief that appears facially appropriate but which is actually specious in every respect. While the employment of a viewpoint that would be both inordinately generous and boundlessly elastic might allow the motion to pass as an application to renew and/or reargue, such is clearly not the case. It is beyond any reasonable dispute that the application plainly seeks to revisit, review and overturn this Court's prior orders, simply regurgitating the arguments that have already been put forth by Plaintiffs, both ad nauseum and ad seriatum. Moving Defendants, having reached the limits of their patience, respond to Plaintiffs' latest meretricious application with their cross-motion (motion sequence 003) seeking the imposition of further sanctions together with a judicial bar to further filings.
As stated in this Court's decision of February 6, 2014, the ancient principle of res judicata actually ensures the finality of judicial determinations, thus effectively avoiding needless litigation. The underlying theory of this venerable doctrine is that the parties have been afforded their proverbial day in court and therefore have been provided with the opportunity to present their claims against each other. The doctrine may be invoked not only as to claims that have already been litigated and decided but it also can be applied to those claims for which a reasonable opportunity was available to litigate, Schuylkill Fuel Corp. v. B. & C. Nieberg Realty Corp., 250 N.Y. 304 (1929). In modern parlance, res judicata might best be defined as “claim preclusion” which is a close relative to the legal doctrine of collateral estoppel or “issue preclusion.” Here, the Court is of the opinion that the principles of both res judicata and collateral estoppel are wholly controlling herein. In order for collateral estoppel to lie, there must have been a final judgment on the merits of the claim, Bannon v. Bannon 270 N.Y. 484 (1936). Where the Court's dispositive directive is in the nature of an order rather than a judgment (i.e.an order upon a motion for summary judgment), that order will nonetheless be given preclusive effect if the doctrinal pre-requisites for res judicata are satisfied, viz., identity of the parties, identity of the issues, opportunity of the parties to be heard, disposition on the merits and finality, Vavolizza v. Krieger 33 N.Y.2d 351 (1974). This is particularly applicable where the order is, by its very terms, final and not interlocutory. Here, it is beyond any dispute that the complaint was dismissed with prejudice on collateral estoppel grounds and that Plaintiffs were sanctioned. Moreover, Plaintiff sought review, albeit unsuccessfully, in the Appellate Division, after which time they returned to this Court.
A thorough examination of all of the papers filed herein, by both Plaintiffs and Defendants, compels this Court to conclude, irrefutably and yet again, that the application that is sub judice is but the latest salvo fired by Plaintiffs in their aggressive but misplaced crusade in a misguided attempt to prevail over Defendants in a war in which they have long since been vanquished. This Court and others have painstakingly dealt with the matter between these parties on more than one occasion and each time, the law and facts have favored Defendants. Plaintiffs have, by their multiple applications, made it abundantly clear to this Court that they are unable to accept such a defeat and furthermore, that they are willing to do anything to accomplish their ends, no matter how illicit the same may be. This conduct cannot and will not be countenanced by this Court.
In considering this branch of Defendants' application, the Court is acutely aware that both Plaintiffs have personally appeared on numerous occasions in support of their claims. Moreover, the Court finds, yet again, based upon the many opportunities to have observed these parties in person, that each of the Plaintiffs are both very highly sophisticated and very well educated individuals. Moreover, both of them demonstrate a deep and substantive understanding of both statutory law and civil procedure together with the ability to apply the same to the matter at hand. In short, both Plaintiffs impress the Court as being not unlike seasoned litigators imbued with a great deal of legal acumen, no small feat when it is considered that neither one, to the best of the Court's knowledge, possesses a law degree or formal legal training. That being said, Plaintiffs have previously been sanctioned by this Court in a combined total sum of $ 74,098.33. Obviously, that sanction has not had the desired effect of deterring Plaintiffs from continuing to prosecute their meritless claims.
The provisions of 22 NYCRR § 130–1.1, insofar as applicable herein, read as follows:
“(a) The court, in its discretion, may award to any party or attorney ... except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct ...
(c) For purposes of this Part, conduct is frivolous if
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
(3) it asserts material facts that are false ... In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.”
In light thereof, the Court is once again constrained to find that the continuing prosecution by Plaintiffs, of the matter that is sub judice, is frivolous as contemplated by 22 NYCRR § 130–1.1. Plaintiffs have once again re-worded and recast the very claims upon which both this Court and the Appellate Division have passed judgment upon on multiple occasions. Indeed, all of the proceedings brought by Plaintiffs against Defendants make it abundantly clear to this Court that Plaintiffs are engaged in waging all-out warfare; a vengeful, belligerent, bellicose and hostile campaign directed against both Defendants and this Court. Plaintiffs have been engaged in persistently perverting and abusing the judicial process, thus creating voluminous, vexatious, burdensome and frivolous litigation that cannot be legally or factually justified. This hooliganism by Plaintiffs, cloaked in an aura of specious legal and factual arguments, as amply and repeatedly observed personally by the Court, cannot and will not be tolerated, Jones v. Camar Realty Corp. 167 A.D.2d 285 (1st Dept.1990). This misconduct exhibited by Plaintiffs clearly falls within the ambit of Sub–Part (c) of the statute, the very conduct that it was designed to deter, 22 NYCRR § 130–1.1(c).
As to Defendants' application for a bar against further proceedings by Plaintiffs, it is axiomatic that courts are loath to grant such an application, absent exigent and extreme circumstances. New York's longstanding public policy is one favoring generally unfettered access to the courts, Board of Education v. Farmingdale Classroom Teachers Ass'n 38 N.Y.2d 397 (1975). However, such unrestrained access is in no wise absolute but instead may be limited or even curtailed in appropriate instances. As the Appellate Division of the Supreme Court, Second Department observed in a scholarly per curiam opinion, “... a litigious plaintiff pressing a frivolous claim can be extremely costly to the defendant and can waste an inordinate amount of time that ... trial courts can ill afford to lose ...” Sassower v. Signorelli 99 A.D.2d 358 (2nd Dept,.1984). Indeed even those litigants who appear pro se have been enjoined from filing where they have used the courts as a weapon in order to harass others or to press forward with meritless claims, Kane v. City Of New York 468 F Supp 586 (SDNY, 1979) aff'd 614 F 2d 1288 (2nd Cir., 1979), In Re Martin–Trigona 737 F 2d 1254 (2nd Cir.1984), injunction made permanent 795 F 2d 9 (2nd Cir.1986), modified sub nom Martin–Trigona v. Cohen 876 F 2d 307 (2nd Cir.1989)
Accordingly, Defendants' application for sanctions, costs and attorney's fees is made and considered pursuant to 22 NYCRR § 130–1.1 and is granted as hereinafter set forth. Moreover, the branch of Defendants' application which seeks the imposition of a bar against further filings by Plaintiff will be granted as hereinafter set forth.
As to the claim for reimbursement of attorney's fees and costs, Defendants are entitled to the recovery of same, the amount of which shall be determined at inquest.
It is, therefore
ORDERED that the motion herein is granted to the extent hereinafter set forth; and it is further
ORDERED that sanctions in the sum of $ 10,000.00 (Ten Thousand Dollars) are hereby imposed upon Plaintiff LOUIS PAAR, to be deposited with the Clerk of the Court not later than thirty (30) days following the date of service of a copy of this Order with Notice of Entry, for subsequent transmittal to the Commissioner of Taxation & Finance in accordance with 22 NYCRR § 130–1.3 ; and it is further
ORDERED that sanctions in the sum of $ 10,000.00 (Ten Thousand Dollars) are hereby imposed upon Plaintiff SUZANNE DeLISI, to be deposited with the Clerk of the Court not later than thirty (30) days following the date of service of a copy of this Order with Notice of Entry, for subsequent transmittal to the Commissioner of Taxation & Finance in accordance with 22 NYCRR § 130–1.3 ; and it is further
ORDERED that an inquest as to the amount of attorney's fees and costs to be awarded shall be held on December 10, 2014 at 2:30 p.m. in Courtroom A–260 of the Supreme Court, 1 Court Street, Riverhead, New York 11901, which shall not be adjourned except with leave of Court; and it is further
ORDERED that the sanctions above-stated shall be entered as a judgment of this Court; and it is further
ORDERED that Plaintiffs LOUIS PAAR and SUZANNE DeLISI, and each of them, jointly and severally, and/or anyone acting on their behalf or in their place and stead, are hereby restrained, enjoined, prohibited and barred from filing any motions, papers, applications, memoranda or any other documents in this cause, absent prior written application to this Court and only after an in camera review and upon subsequent written approval by this Court; and it is further
ORDERED that the above injunction shall not impair, impede or otherwise restrain Plaintiffs' access to the Appellate Division; and it is further
ORDERED that any relief not specifically granted shall be and the same is hereby denied.
This shall constitute the decision, judgment and order of this Court.