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SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

PRESENT:

HON. PAULWOOTEN

PART_Z_

Justice

JAMES COURi,
PlalnW,

INDEX NO.

113812/08

- against NO.

005

JOHN SIEBERT and JOHN W SIEBERT, MD.PC.,

Defendants.

Notice of Motion/ Order to Show CauseAffidavits~ Exhibits

Answerina Affidavits Exhibits(Memol

\ filed

Replying Affidavits(Reply Memol

r-,

Cross-Motion: U Yes No

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Now before the Court is a motion by Jdnfes Couri (plaintiff), pursuant to CPLR 3126,for
an Order striking the defendants' answer and affirmative defenses and setting this matter down
for an inquest as to damages on the basis of defendants' refusal to comply with discovery

demands served in 2009, ordering defendants to produce documents and produce defendant

John Siebert for a deposition. Plaintiff also seeks disqualification of defendants' counsel Joseph
M. Burke, Esq.(Burke). Defendants are in opposition to the motion, and the plaintiff submits a
reply.
DISCUSSION

This action (2008 Case)was filed by the plaintiff, pro $e, and which the Court notes is
duplicatlve of another action pending before this Court in Couri v Siebert, under index no.

107240/2004(2004 Case). Plaintiff filed a complaint on June 24.2004, in the 2004 Case, and
then filed an amended complaint on August 21.2004. Plaintiffs amended complaint alleged
that the defendants owed him $600,000.00 for breach of contract on payments on a promissory

note. Due to the acrimonious nature of the parties, Honorable Harold Beeler instituted an

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injunction which prohibited both parties from commencing a new action or filing a new motion
without leave or permission of the Court(Order dated December 12,2005 and February 17,
2006). PiaintifTs complaint and counterclaims were subsequently dismissed by the Appellate

Division, First Department in February 2008, wherein the Appellate Division granted the

defendants' motion to strike the claims based upon plaintiffs continued ifallure to comply with
discovery demands for his tax retums, but the defendants' counterclaim remained (see Couri v
Siebert, 48 AD3d 370[1st Dept 2008]).
With the consent of the Administrative Justice, the Honorable Michael J. Stallman, a

prior Judge assigned to the 2004 Case, granted the plaintiffs one-time application to file a new
action. Thus, on or about October 7,2008, plaintiff commenced the herein action, by Summons
with Notice, and subsequently filed a complaint. Defendant filed an answer with counterclaims
and issue was Joined.

In the 2004 Case,this Court granted defendants' motion to strike plaintiffs reply to
defendants' counterclaims and dismissed the plaintiffs counterclaims by Court order, dated
December 24,2013, inter alia, for failure to comply with discovery orders. In so doing this Court

labeled the plaintiff a vexatious litigator and (1)granted defendants' motion to strike and
dismiss plaintiffs reply to defendants' counterclaims;(2)deemed plaintiff a vexatious litigator
and enjoined plaintiff from:(a)asserting his medical or physical condition, or medical treatment
thereof, or(b)asserting his unavailability being out of state as a reason for non-appearance or
non-participation in court procedure before this Court or Special Referee or any Court-

appointee, and (3)re-issued the interim orders by Justice Harold Beeier, dated February 17,
2005, and his order dated December 12.2005, in which ail parties were enjoined from taking

any further action in this matter including, filing any motions, without prior leave of this Court.
On February 26,2014,the Court held a mandatory Compliance Conference in Part 7,
Courtroom 341,60 Centre Street, New York for both the 2008 and the 2004 Case. The plaintiff

despite having notice of the conference appearance, chose not to appear, without good cause
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for his non-appearance or to send an attorney on his behalf. The defendants appeared at the
conference and the Court proceeded to conference the cases.
Moreover, the relief sought by the plaintiff in this motion, to wit, discovery from the

defendants and the disqualification of Burke is duplicative of previous motions filed in the 2004
Case. In this motion plaintiff seeks to re-IHigate issues that have been resolved by numerous

Orders, including Motion Sequence 069 in the 2004 Case, and are thus denied as moot, barred

by the doctrines of res judicata (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343,347

[1999]("Under resjudicata, or daim preclusion, a valid final judgment bars future actions

between the same parties on the same cause of action"]; Serio v Town of Isllp, 87 AD3d 533,

534[2d Dept 2011]["although the plaintiff alieges in the instant action that the defendants
engaged in fraud, this purported new ciaim or theory is grounded on the same transaction or
series of transactions as the prior action"]; Yonkers Contr. Co., Inc. v PortAuth. Trans-Hudson

Corp.,93 NY2d 375, 380[1999][a "final condusion" may be indicated by the court through the
use of"on the merits" or "dismissal with prejudice" language, both interchangeably used to

predude further litigation on the matter]), and collateral estoppel ("[t]he party seeking the

benefit of collateral estoppel must demonstrate that the identical issue was necessarily dedded
in the prior adjudication and is decisive in the newly presented circumstance and forum. To
block the use of estoppel, a contestant can show the absence of a full and fair opportunity to

present relevanfviews in the prior contesf {David v Blonde, 92 NY2d 318,322[1998]).

Thus, plaintiffs motion is denied on the basis that(1)it violates Justice Beeleris Orders,
and this Court's order, dated December 24,2013. which labels plaintiff a vexatious litigator and

enjoins the parties from filing such motions without leave of the Court;(2) plaintiff improperly
filed a frivolous duplicative motion intended and designed to harass the defendants, to waste

judicial resources, cause unnecessary legal expenses, and cause duplicative litigation that

might lead to conflicting results(see lrt>-Brasll Resseguros S.A., v Portobello Intl. Ltd., 59 AD3d
388[1st Dept 2009]); and (3)It violates this Court's order, dated April 8,2015, which granted
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plaintiff a telephone conference with the.Court to consider granting him leave to file this motion,
which plaintiff ignored, and he subsequently filed this motion without leave of the Court {see
Court order dated April 6,2015).
Furthermore, plaintiff has made numerous other motions to disqualify Burke from
representing the defendants, which have ali been denied. As such, the portion of plaintiffs

motion herein seeking to disqualify defendants' counsel is denied. There is no credible or

rational basis in the Court's record to support-such an application (see Ciao-Di Rest Corp. v
Paxton 350, LLC,22 Misc 3d 1117IA], at *2[Sup Ct. NY County 20081 rmotions to disqualify
opposing counsel are disfavored... and require a high standard of proof]; Goldsmith v

Ellenberg, 20^3 WL 2142264,*8,2013 NY Misc LEXIS 1997,*17[Sup Ct, NY County 2013];

see also Northwestem A/atf. Ins. Co. v Insco, Ltd., 2011 WL 4552997,*4,2011 US Dist LEXIS

113626,*31 [SD NY 2011]; Tradewlnds Airlines, Inc. v Soros, 2009 WL 1321695,*3,2009 US

Dist LEXIS 40689,*9[SD NY 2009]; Floras v WillardJ. Price Assocs., LLC,20 AD3d 343,344

[1st Dept 2005]TMhe disqualification of an attorney is a matter that rests within the sound
discretion of the courf]; see Wells Fargo Bank, N.A. v Caro,82 AD3d 880,881 [2d Dept 2011];

FalkvGallo,73 AD3d 685,685[2dDept2010]; Harri$ vScuico, i36 AD3d481.481 [Ist Dept

2009]).

Moreover, plaintiffs motion to disqualify Burke as defendants' counsel is at least the

tenth such motion to disqualify him and this Court concludes that it is frivolous, totally without

merit, and completely unsupported by the Court record such that the Court deems it to be

designed to harass and annoy the defendant and his attorney. Plaintiff sought disqualification
in the 2004 Case as recently as Motion Sequence 069, which was also denied,
Part 130 of the Rules of the Chief Administrator permits courts to sanction parties or

attorneys for engaging in frivolous conduct, which includes conduct:(1)"completely without

merit in law";(2)"undertaken primarily to... harass or maliciously injure another"; or(3)

"asserting] material factual statements that are false'(see 22 NYCRR 130-1.1; Tavella v
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Tavella, 25 AD3d 523,524[1st Dept 2006]). Plaintiff, acting pro se, has engaged in a pattern
of abusive iitigation against the defendant by filing expensive frivolous and duplicative motions
designed to harass, injure and annoy the defendant, and as a result plaintiff is subject to
sanctions.

Plaintiff in the 2004 Case previously filed more than six summary judgment motions,
multiple frivolous motions to vacate, motions to reargue, multiple motions to disqualify

defendants'counsel, and motions seeking to recuse judicial officers that rule adverse to his
position, and almost all of the motions repeatedly allege the same arguments. Moreover,

plaintiffs intent, in both the 2008 and the 2004 Cases, is to prolong the resolution of the matter

as a means of harassing the defendant, and to waste judicial resources which is evident from:

(1) plaintiffs choice to proceed pro se, and continued repeated frivolous motion praptice despite
warnings by the Court and orders;(2) plaintiffs failure to make court appearances for good

cause in order to represent himself or to provide an attorney for same;(3)repeatedly refusing

or ignoring Court orders to cooperate with the discovery process;(4) verbally abusing Court
personnel by telephone and repeatedly leaving harassing and threatening messages on the

Court message system; and (5) his repeated insistence, for more than 11 years, that he is too ill
to participate in Court procedures, appearances and conferences whenever the Court seeks to
move this case or respond to his telephone requests.

The plaintiff has chosen to proceed pro se when he filed this action in 2004 and 2008,

and has also proffered an undocumented illness which has kept him from prosecuting this
action since 2004. Plaintiff has not substantiated any such illness as he has failed to timely

provide the proper medical authorizations, and he has failed to provide valid documentation of
his alleged illness, through valid affidavit or otherwise, when given more than two years to do
so, and refused a medical examination by the defendants(see Motion Sequence 29[2004
Case]dated November 10,2009).

In the 2004 Case this Court has repeatedly denied the plaintiffs pro se motions for
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failure to follow this Court's injunction requiring that he obtain permission of the Court prior to

filing any new action or motion, and/or warned the plaintiff that this continued action would be
sanctionable(see Motion Sequences 047,058, Order dated August.3,2010, Motion Sequences

055,054, Order dated July 6,2010, p. 3^ 1, Motion Sequence 060,061,062,063,065, Order

dated June 30,2011, Motion Sequence 042,064, Order dated September 27,2011, Interim

Court Order, dated January 17,2014, p. 2 H 5; Interim Court Order, dated February 18,2014, p.

3^7, motion sequence 067, dated December 24,2013). "Notwithstanding the public policy
requiring free access to the courts, the motion court's order barring plaintifffrom initiating

further litigation or motion practice against defendants without prior court approval unless he is

represented by counsel was justified by piainfrifs continuous and vexatious litigation against
defendants'{Banushi v Law Off. ofScott W. Epstein, 111 AD3d 558,558[1st Dept 2013];
Breytman v Pinnacle Group, 110 AD3d 754[2d Dept 2013]["while public policy mandates free
access to the courts, when a litigant is abusing the judicial process by harassing individuals

solely out of ill will or spite, equity may enjoin such vexatious litigation"]; DImery v Ulster

Savings Bank,82 AD3d1034[2d Dept 2011]); lrt)-Brasil Resseguros S.A., 59 AD3d at 366
["The court properly invoked Its equity power to enjoin defendants from prosecuting the action.
.. in order to prevent the waste ofjudicial resources, unnecessary legal expenses, and
duplicative litigation that might lead to conflicting results'] Couri v Siebert, 48 AD3d 370[1st

Dept 2008]; Lammers v Lammers, 235 AD2d 286[1st Dept 1997][Given the numerous
frivolous motions defendant has made, it was a proper exercise of discretion for the court to

enjoin her from making any further motion in this action without judicial approval]; Schwartz v
Nordstrom, inc., 160 AD2d 240,242, appeal dismissed 76 NY2d 845 imO],Iv denied 76 NY2d
711 [1990]; Ultracashmere House v Kenston Warehousing Corp., 166 AD2d 386[1st Dept

1990]rihe injunction^ against further litigation by [this plaintiff] was clearly justified by the
vexatious nature of these [prior] proceedings and the concomitant abuse of the judicial
process"]).
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In denying the herein motion in its entirety,, the Court also finds it appropriate to impose
sanctions in the amount of $2,500.00 against the plaintiff, pursuant to 22 NYCRR 130-1.1,for
bringing a frivolous and duplicative motion, brought primarily to harass and waste Court

resources, without prior court approval. Finally, the Verified Complaint is dismissed for
plaintiffs failure to appear at the call of the calendar for a mandatory Compliance Conference

on February 26,2014, pursuant to 22 NYCRR 202.27(b). This Court has previously ruled that
plaintiff cannot use his medical condition, which plaintiff has failed to substantiate through valid
and admissible documentation, as a basis for falling to appear in Court or to follow this Court's
Orders.

CONCLUSION

Accordingly it Is,

ORDERED that plaintiff James Court's motion brought pursuant to CPLR 3126,for an

Order striking the defendants' answer and affirmative defenses and setting this matter down for
an inquest as to damages on the basis of defendants' refusal to comply with discovery

demands served in 2009, ordering defendants to produce documents and produce defendant
John Siebert.for a deposition, and for disqualification of defendants'counsel Joseph M. Burke,
Esq. is denied in its entirety; and it is further,

ORDERED that the Verified Complaint Is dismissed for plaintiff's failure to appear at the
call of the calendar for a mandatory Compliance Conference on February 26, 2014, pursuant to
22 NYCRR 202.27(b); and it is further,

ORDERED that the Court sua sponte imposes sanctions against plaintiff in the amount

of $2,500.00, pursuant to 22 NYCRR 130-1.1,for filing a successive frivolous motion In violation

of Section 130-1.1 of the Rules of the Chief Administrator, and for filing this motion without prior
leave of the Court, In violation of the Orders of Justice Harold Beeler and of this Court; and it Is
further,

ORDERED that the aforementioned sanctions are to be deposited with the Clerk of the
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Court for transmittal to the Commissioner of Taxation and Finance; and it is further,
ORDERED that the Orders of Justice Harold Beeler, and the Order of this Court dated

December 24,2013 are still in place and are reissued, and the herein parties are enjoined from
taking any further action in this matter including, filing any motions, or filing any new actions
before this Court, without prior leave of the Administrative Justice of this Court; and it is further.
ORDERED that plaintiff is continued to be deemed a vexatious litigator and is enjoined
from;(1)asserting his medical or physical condition, or medical treatment thereof, or(2)
asserting his unavailability being out of state as a reason for non-appearance or non-

participation In court procedure before this Court or Special Referee or any Court-appointee;
and it is further,

ORDERED that the parties'failure to comply with the terms of this order shall subject
the parties to dismissal of their action, sanctions or contempt of the Court; and it is further,

ORDERED that the Clerk of the Court and the County Clerk of New York County are

ordered not to accept any further papers in connection with this matter, including any motions,
nor is plaintiff allowed to commence any new actions without prior leave of the Administrative
Justice of this Court; and it is further,

ORDERED that the defendants shall serve a copy of this Order with Notice of Entry on
the plaintiff and the Clerk of the Court who is diractftH tn

This constiti^J^^^^p6l|^
i

o1|he Court.

jiirff|monf accordingly.

JAN 2 7

DaM:

AULWOOTEN J.S.C.

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REFERENCE