Summary
In Ruffalo v. Ackerman, 2014 NY Slip Op. 51744(U) decided December 12, 2014, the court imposed costs on plaintiff of $250.00 because of plaintiff's submission of inappropriate pleadings produced a "colossal waste of time" and expense to defendant and the court.
Summary of this case from N.Y.C. Hous. Auth. v. MarreroOpinion
No. 50524/2014.
12-12-2014
Todd RUFFALO, Jr., Plaintiff, v. Peter B. ACKERMAN, Esq. and Peter B. Ackerman, Individually, Defendants.
James F. Creighton, Esq., Steinberg & Cavaliere, LLP, White Plains, Attorneys for Defendants.
James F. Creighton, Esq., Steinberg & Cavaliere, LLP, White Plains, Attorneys for Defendants.
Opinion
CHARLES D. WOOD, J.
Defendants bring this motion to dismiss the complaint on the grounds that the statements in the complaint are not sufficiently particular, and awarding costs and disbursements herein and for sanctions pursuant to Part 130–1.1 of McKinney's New York Rules of Court, together with a restraining/protective order precluding plaintiff from filing any further vexatious lawsuits or otherwise contacting or communicating with defendants or their insurers, attorneys or representatives.
Plaintiff previously commenced prior actions in Supreme Court, Westchester County seeking the same relief sought herein. In the first action (Index No. 52501/11, plaintiff's action was dismissed by Order of Hon J. Emmett Murphy, J.S.C. dated September 6, 2011. In that decision, the court noted that “plaintiff's entirely inappropriate use of vulgarities and profane hyperbole as well as the vexatious, rambling abuse which have been carelessly employed both in the complaint itself and in plaintiff's opposition papers to insult and demean defendants, defense counsel, Judge Friedman and numerous others are improper”. Plaintiff was cautioned not to allow his extreme personal acrimony to abrade common civility in the event he chooses to refile this action pro se or through counsel. And refile he did, and that action was subsequently stricken by the court by Judge Smith on February 8, 2012, holding that plaintiff's complaint: “failed to comply with CPLR 3013, CPLR 3014 and CPLR 3024, subdivision (b), in that it sets forth irrelevant, redundant, prejudicial, slanderous and scandalous assertions in a prolix, rambling confusing manner which this Court finds are improper, irreverent and make it impossible for defendants to properly answer”. Even after Judge Smith gave plaintiff one final opportunity to serve an appropriate complaint, plaintiff served a similarly improper complaint. On April 20, 2012, Judge Smith dismissed plaintiff's action and further warned that “plaintiff is hereby advised that his future commencement of any new action which includes his filing of a pro se complaint relating to the claims herein shall result in future imposition of much more severe costs and/or sanctions upon him pursuant to Part 130–1.1 of McKinney's New York Rules of Court.”
Here, before this court for consideration, is plaintiff's fourth similarly inappropriate complaint (to say the least), wherein plaintiff rambles on through eighty-three (83) paragraphs of irrelevant, bombastic, acrimonious allegations against defendant and anyone who even peripherally has had the misfortune of being associated with the defendant or the earlier dismissed filings by the plaintiff. The court does observe that the plaintiff refrained from the non-abbreviated use of what might be referred to as “George Carlin's 7 words you can't say on television.” Plaintiff ping pongs back and forth about Home Depot bilking him out of $44,000, and thus his family had to eat out for months, and damage to his car from a repair shop, and cases decided by a Judicial Hearing Officer that do not appear to have any relationship to this case. He asserts that defendant, his attorney, and multiple other people are bipolar, old, perform shoddy work, are unscrupulous, unprofessional, and should be disbarred. The problem with plaintiff's complaint is that it once again it contains discombobulated, incomprehensible, unconnected diatribe that he was warned by the court not to do. Taking a representative sample from the complaint: “this former JHO Robert J. Friedman has a track record and history of fraud and malice in bench trials”; (par. 13); ... the invented complaint form this unstable woman now has validity to it, due to the people that Karen Linzenbert knew ...” (Par 14); all of the facts, lies and fraud in this case from Audio Etc., were buried by the Defendant Peter Ackerman, which he setup this case to lose form the outset” (par 15). Moreover, he cites Justice Smith as “a Dirty Bias State Judge” (Plaintiff's Complaint par. 47). One can only wonder what characterization awaits this court in light of its rulings herein. Plaintiff's repeated inappropriate, slanderous rantings cannot and should not be tolerated by a court of law. Plaintiff's complaint reads with incoherent disconnected thoughts that fail to properly plead any legally cognizable claim, and appears to be some outlet for plaintiff to voice his dismay and verbally abuse persons related to his case and the judicial system. Plaintiff's inappropriate statements permeate the complaint, and simply cannot be responded to in an answer or a motion as they fail to remotely comply with the pleading requirements of CPLR 3013 and 3014.
Motion to Dismiss
It is well settled that pursuant to CPLR 3211(a)(7) “upon a motion to dismiss [for failure to state a cause of action], the sole criterion is whether the subject pleading states a cause of action, and if, from the four corners of the complaint, factual allegations are discerned which, taken together, manifest any cause of action cognizable at law, then the motion will fail. The court must afford the pleading a liberal construction, accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Esposito v. Noto, 90 AD3d 825 [2d Dept 2011] ; (Sokol v. Leader, 74 AD3d 1180, [2d Dept 2010] ); (Bua v. Purcell & Ingrao, P.C., 99 AD3d 843, 845 [2d Dept 2012]lv to appeal denied, 20 NY3d 857, 984 N.E.2d 324 [2013] ). However, this does not apply to legal conclusions or factual claims which were either inherently incredible or flatly contradicted by documentary evidence (West Branch Conservation Assn. v. County of Rockland, 227 A.D.2d 547 [2d Dept 1996] ). Moreover, if the court considers evidence submitted by a defendant in support of a motion to dismiss under CPLR 3211(a)(7)... a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint,” and if the court does so, “the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one” (Leon v. Martinez, 84 N.Y.2d 83, 88 [1994] ; Uzzle v. Nunzie Ct. Homeowners Ass'n, Inc., 70 AD3d 928, 930 [2d Dept 2010] ); Greene v. Doral Conference Ctr. Assoc., 18 AD3d 429, 430 [2d Dept 2005] ). Thus, affidavits and other evidentiary material may also be considered to “establish conclusively that plaintiff has no cause of action” (Simmons v. Edelstein, 32 AD3d 464, 465 [2d Dept 2006] ). The court may also consider further affidavits where a meritorious claim lies within inartful pleadings (Lucia v. Goldman, 68 AD3d 1064, 1065 [2d Dept 2009] )..
Internal citations omitted.
More succinctly, under CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, but if the court considers evidentiary material, the criterion then becomes “whether the proponent of the pleading has a cause of action” (Sokol v. Leader, 74 AD3d 1180, 1181–82 [2010] ; Marist College v. Chazen Envtl. Serv. 84 AD3d 11181 [2d Dept 2011] ). Whether a plaintiff can ultimately establish [his or her] allegations is not part of the calculus (Dee v. Rakower, 112 AD3d 204 [2d Dept 2013] ).
CPLR 3013 provides that “[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.” CPLR 3014 provides that “[e]very pleading shall consist of plain and concise statements in consecutively numbered paragraphs.” It further provides that “[e]ach paragraph shall contain, as far as practicable, a single allegation.
Here, plaintiff's entire complaint contains incoherent conclusory statements. The complaint therefore gives no notice to the court or the defendant of the transactions, occurrences, or series of transactions or occurrences, intended to be proved. While, a court must liberally construe factual allegations and will not dismiss a complaint simply because of poor draftsmanship, the nature of the complaint herein fails to provide any reasonable reader the ability to give meaning to a pleading, or a defendant the opportunity to offer any meaningful opportunity to defend. The complaint fails to state any coherent or comprehensible factual allegations (see CPLR 3013 ). Even if arguendo, the defendant actually mishandled his cases against Home Depot and Audio, Etc., giving rise to a claim, the plaintiff has so affirmatively and repeatedly abused his multiple opportunities to plead it, despite guidance and admonishment by two prior Justices of the Supreme Court, that this court has no choice but to reject his complaint again. Since plaintiff's complaint does not state any cognizable claim in law or in equity, it must be dismissed pursuant to CPLR 3211(a)(7).
Sanctions and Costs
Turning to defendant's requested relief of sanctions and costs, 22 N.Y.C.R.R. 130–1.2 [formerly section 130.2] provides as follows: “The court may make an award of costs or impose sanctions or both only upon a written decision setting forth the conduct on which the award or imposition is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate. An award of costs or the imposition of sanctions or both shall be entered as a judgment of the court. In no event shall the amount of sanctions imposed exceed $10,000 for any single occurrence of frivolous conduct. “Courts have not held that the procedural dictates of 22 NYCRR 130–1.2 must be followed “in any rigid fashion” (Duncan v. Popoli, 105 AD3d 803, 805 [2d Dept 2013] ). An award of costs or the imposition of sanctions may be made either upon motion in compliance with CPLR 2214 or 2215 or upon the court's own initiative, after a reasonable opportunity to be heard. An amount of sanctions imposed should reflect the party's culpability in engaging in frivolous conduct as well as prejudice to the adversary (Tropeano v. Tropeano, 35 AD3d 444, [2d Dept 2006] ). Making colorable claims may constitute frivolous conduct if the primary purpose is to delay or prolong the resolution of the litigation, or to harass or maliciously injure the other party.” (Kaygreen Realty Co., LLC v. IG Second Generation Partners, L.P., 78 AD3d 1008, 1009 [2d Dept 2010] ). “Enforcement of the sanctions rule is essential to deter conduct that wastes judicial resources and inhibits the proper administration of the court system” (Gordon v.. Marrone, 202 A.D.2d 104, 111 [2d Dept 1994] ).
Here, defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(7) and also for imposition of a sanction in the form of an attorney's fee and costs. Plaintiff was thus given notice of the request, and he had a reasonable opportunity to be heard in opposition thereto (Duncan v. Popoli, 105 AD3d 803, 803–05 [2d Dept 2013] ). Because plaintiff's prior submissions of inappropriate pleadings produced a colossal waste of time and expense of defendant and the court, and the court (Smith, J) previously imposed costs on plaintiff of $250. That amount and the written warnings by two Justices of the Supreme Court in three separate Orders failed to deter plaintiff from engaging in his further frivolous conduct as outlined herein, so the court now grants defendants the sum of $1,000 for the costs of this motion. This higher amount will hopefully raise the plaintiff's awareness that his submissions are unacceptable and will no longer be tolerated, while not inviting financial ruin upon him. Therefore, within thirty days after service of this order with notice of entry, plaintiff shall pay to defendants' counsel said sum of $1,000, with proof of payment to be forwarded to the court.
Preclusion
Unfortunately, in certain circumstances such as exist here, courts have found it necessary to enjoin pro se litigants from commencing or continuing any further actions when it was found those litigants were abusing the judicial process. In Sassower v. Signorelli, 99 A.D.2d 358, 472 N.Y.S.2d 702 (2nd Dept.1984), the Second Department held “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 by hagriding individuals solely out of ill will or spite, equity may enjoin such vexatious litigation.” The plaintiff's current claim—the latest in a series—is a prime example of what the Second Department was referring to. Based upon a pattern of vexatious conduct and repetitive litigation and proceedings brought by plaintiff, this court grants a protective order against him. Such action by this court is not taken lightly (and is only the second time in nine years that the court has imposed such a measure), but the court finds such action to be necessary and appropriate under the particular facts and circumstances presented herein.
Accordingly, based on the stated reasons, it is hereby
ORDERED, that the complaint is dismissed with prejudice for plaintiff's repeated failure to comply with the pleading requirements of CPLR 3013 and 3014, as well as to heed the three prior written warnings contained in the orders of Hon. J. Emmett Murphy and Hon. Mary H. Smith; and it is further
ORDERED, that the court grants defendants the sum of $1,000 in costs, and within thirty days after service of this order with notice of entry, plaintiff shall pay to defendants' counsel said sum, with proof of payment to be forwarded to the court; and it is further
ORDERED, that plaintiff Todd Ruffalo, Jr. is hereby enjoined from initiating any further litigation as a party plaintiff against any of the defendants named in this action in any courts of New York State, without attaching a copy of this decision to his proposed complaint and addressing same in the first paragraph of his complaint or pleading, and receiving prior approval of the Administrative Judge of the Judicial District in which he seeks to bring a further motion or future action, or the designee of such judge, with the sole exception of appealing the within decision and order; and it is further
ORDERED, that defendant shall serve a copy of this order to the Clerk and all parties within ten (10) days of notice of entry, and file proof of service within five (5) days of service; and it is further
ORDERED, that the Clerk shall enter judgment accordingly.
All matters not specifically addressed are herewith denied.
This constitutes the decision and order of the court.