The following papers numbered 1 to 4 read on this motion:Papers Numbered:

Notice of Motion/Affidavits (Affirmations)1

Affirmation in Opposition2

Reply Affidavit3Transcript of June 14, 2011 Court Proceedings4___________________________________________________________________ _____ [*2]

Pro se plaintiff ALEXANDER BREYTMAN (BREYTMAN) brought an action for legal malpractice, breach of contract, fraud, intentional infliction of emotional distress and defamation against defendants DONALD SCHECHTER and DONALD SCHECHTER, P.C. (collectively "SCHECHTER"), stemming from SCHECHTER's representation of BREYTMAN in actions for malicious prosecution and false arrest against the City of New York and plaintiff's former landlord. In my prior February 8, 2011 decision and order, I granted defendants summary judgment and dismissed the instant action with prejudice. However, despite the dismissal with prejudice, plaintiff BREYTMAN now moves for various relief, including what the Court deems a motion to reargue. The Court, for reasons that will be explained, finds the instant motion "frivolous." It is completely without merit in law and undertaken primarily to harass and maliciously injure defendants SCHECHTER and the Court. After giving plaintiff BREYTMAN a reasonable opportunity to be heard and reviewing all papers submitted and the oral argument transcript, the instant motion is denied. Costs and sanctions are imposed upon plaintiff BREYTMAN for frivolous conduct.

In my February 8, 2011 decision and order, published at 30 Misc 3d 1219 (A), I stated at * 1:

Ultimately, plaintiff BREYTMAN, after disagreeing with

SCHECHTER about case strategy and engaging in abusive conduct

toward SCHECHTER, terminated his representation by SCHECHTER

in late November 2006. Plaintiff continued the actions as a pro se

litigant, but failed to prevail against the City of New York and the

landlord. Despite terminating SCHECHTER, plaintiff BREYTMAN

continued to harass SCHECHTER and blamed SCHECHTER for not

prevailing against the City and the landlord. In this action, plaintiff

continued to harass SCHECHTER by serving papers directly upon

SCHECHTER, not SCHECHTER's counsel, in violation of procedure

and my preliminary conference order.

In the instant action, defendants move for: summary judgment

and dismissal of plaintiff's complaint, pursuant to CPLR Rule 3212 (a);

and, enjoining plaintiff from initiating further litigation against

defendants and from any further contact with defendants without

prior court approval. Plaintiff cross-moves for a sanction of $10,000.00

against SCHECHTER, pursuant to 22 NYCRR § 130-1.1.

Then, at * 5, I held:

Defendants SCHECHTER met their CPLR Rule 3212 (b)

burden with a prima facie showing to the Court that as a matter of

law plaintiff BREYTMAN's causes of action have no merit. Moreover,

after viewing the evidence in support of SCHECHTER in the light

most favorable to BREYTMAN there are no issues of material fact

that would bar the Court from directing judgment in SCHECHTER's

favor. Plaintiff BREYTMAN, in his opposition papers, fails to show [*3]

that there are triable issues of fact. All eight causes of action are

dismissed as a matter of law.

After further analysis of the facts and discussing relevant law, at * 9, I observed that:

The Court is concerned that plaintiff BREYTMAN continues to

use the scarce resources of the New York State Unified Court System

to fruitlessly pursue the same claims. He is no stranger to litigation

in Supreme Court, Kings County, Civil Term. The Court should not

have to expend resources on the next action by Mr. Breytman that will

be a new variation on the same theme of defendants' alleged misdeeds

and misconduct. The continued use of the New York State Unified

Court System for Mr. Breytman's scorched earth policy against

defendants must cease.

Further, at * 10 - 11, I instructed:

Mr. Breytman, with his history of abusing the civil justice system,

by bringing pro se actions devoid of merit against various defendants

and continuing to attempt to obtain his original file in the actions

against the City of New York and his former landlord from SCHECHTER,

is precluded from relitigating the same claims and issues which waste

court resources and is enjoined from bringing any future actions in the

New York State Unified Court System against DONALD SCHECHTER

and DONALD SCHECHTER, P.C., without the prior approval of

the appropriate Administrative Justice or Judge . . .

Accordingly, it is

ORDERED, that the motion of defendants DONALD SCHECHTER

and DONALD SCHECHTER, P.C., for summary judgment and dismissal of

plaintiff ALEXANDER BREYTMAN's complaint, pursuant to CPLR Rule

3212 (a), is granted; and it is further

ORDERED, that the instant complaint is dismissed with prejudice;

and it is further

ORDERED, the cross-motion of plaintiff ALEXANDER

BREYTMAN, for a sanction of $10,000.00 against defendants

DONALD SCHECHTER and DONALD SCHECHTER, P.C.,

pursuant to 22 NYCRR § 130-1.1, is denied; and it is further

ORDERED, that plaintiff ALEXANDER BREYTMAN is

hereby enjoined from commencing any future actions in the New

York State Unified Court System against DONALD SCHECHTER

and DONALD SCHECHTER, P.C., without the prior approval of

the appropriate Administrative Justice or Judge; and it is further

ORDERED, that any violation of the above injunction by

ALEXANDER BREYTMAN will subject to costs, sanctions and

contempt proceedings.

This constitutes the decision and order of the Court.

Subsequently, plaintiff BREYTMAN made the instant motion, seeking "restoring case to [*4]active status" and upon restoring: my recusal; sealing of the case; leave to amend the complaint; and, continued discovery. Defendants SCHECHTER oppose the motion.

On June 14, 2011, oral argument on plaintiff's instant motion was conducted on the record. In the oral argument transcript, I observed, at p. 4, that I would consider that branch of plaintiff's motion to restore the case to active status as a motion to reargue. Then, I stated, at p. 5, line 22 - p. 6, line 7:

"A motion to reargue" means that you have to prove to the Court that

there is a matter of fact or law that Court overlooked or misapprehended according to CPLR Rule 2221 (d). So I will accept this as a motion to

reargue which has to be based on matters of factual law that are allegedly

overlooked or misapprehended by the Court.

Now, I don't know what I overlooked or misapprehended because

your papers are what I would call a stream of consciousness. I don't

know how to describe it. It is very disjointed. It rambles on.

Counsel for defendants, in his affirmation in opposition, at ¶'s 15 and 16, describes the instant motion as follows:

15. Plaintiff's current motion which contains threatening,

obscene and libelous statements against Justice Schack and Defendants

further supports the portion of the Order enjoining plaintiff from

contacting Defendants or commencing future litigation against

Defendants without prior Court approval.

16. Plaintiff's motion is merely another example of plaintiff's

willingness to harass the Defendants and abuse the judicial process in

the absence of Court intervention.

The following are some examples of plaintiff BREYTMAN's outrageous and offensive statements. Plaintiff begins his affidavit in support of the motion by stating, in ¶ 1, "I Alexander Breytman the last of the Mohicans have chutzpah to make this affidavit in support and against dishonorable Arthur M. Schack Universe and Donald Schechter Galaxy and Karl Marxist and Fredrick Engels' fuzzy Machiavellian order selling snake oil, legally deficient full of holes like Swiss cheese where I can fly space shuttle through [sic]." Further, at ¶ 5, plaintiff informs the Court "Your order is unconstitutional and I do not have to follow, lead or get out of the way, you just overruled by Pro se, how you like them apples [sic]." Then, at ¶ 11, he states, "I am immune from your dishonorable illegal order that is unconstitutional and therefore is null and void and is in effect under lock and key [sic]." Plaintiff, in ¶ 18, calls the Court "Your dishonor," claims that the Court is "both a communistic argument or fascist which for all intent and purposed are the same dam thing [sic]" and informs the Court that "You and your compadres are the problem that plagues this world and not a solution kapish'[sic]." Moreover, plaintiff states: in ¶ 26, "Your dishonorable unconstitutional hypocritical order is meaningless and I do need to comply at all [sic]"; in ¶ 27, "Your dishonor futile attempt to muzzle me only prolongs my pain and suffering [sic]"; and, in ¶ 31, "I am not your sheep for a slaughter. You try but will fail to set my world on fire rather it is your universe that will burn . . . I will rise like Phoenix out of ashes and will reverse your malicious Swiss cheese order . . . You and Schechter only prolong my pain and [*5]suffering and this I cannot and will not live with. I will do my crying in the rain. Donald Schechter Eureka moment is short lived [sic]."

Moreover, plaintiff did an internet search about the Court, reciting personal information about myself and my family that appeared in the New York Times on August 31, 2009, which is totally irrelevant to the instant motion. For example, he wrote, in ¶ 16, "You were a union representative and once walked a picket line with his wife . . . who was a teacher, too . . . Ooh schools in US suuuuuucccccckkkkkkssssss . . . You are not supposed to be picketing with UFT and quiet unethical conduct [sic]." Then, in oral argument, plaintiff attacked me for engaging in picketing, which occurred years before I became a judge, let alone a Member of the Bar. It is not a secret that years before my election as a judge I was a New York City teacher, United Federation of Teachers Chapter Chairman and on strike in 1968 and 1975. Yet, at p. 26, lines 5 - 22, plaintiff engaged in slander, equating events of 1968 and 1975 with the present:

MR BREYTMAN: Your Honor has colluded with the teacher's

union and Your Honor had picketed despite the fact that you cannot do

that as judge of the courts.

THE COURT: When did I picket?

MR. BREYTMAN: I have it all documented . . . I can find out

things about Your Honor as well. It's all public knowledge.

THE COURT: What does that have to do with —

MR. BREYTMAN: It's not attainable to get sanctions against me

because I have done nothing frivolous. Your discretion is completely

ludicrous just because I am saying what I am saying and I have no fear

of repercussions from Your Honor which is exactly why you retaliate

and you say I am suing the City, a scorched earth policy. If I had a hundred

cases which easily I can file against the courts, against the officers,

anybody in the courtroom I can file cases and cases.

Further, in the June 14, 2011 oral argument, I stated, at p. 22, lines 5 - 22:

Now, I have another matter which I have a right to bring up in my

own discretion. We have here Mr. Schechter's attorneys. I believe

it's the firm of Catalano, Gallardo & Petropoulos . . . It cost Schechter

money to have them here. I believe under the Rule 130-1.1, it says,

"(a), the Court is it discretion may award to any party or attorney in any

civil action or proceeding before the Court costs in the form of

reimbursement for actual expenses reasonable incurred, reasonable

attorneys' fees resulting from frivolous conduct as defined in this Part."

And one of the definitions of frivolous conduct is that, "It is undertaken

primarily to delay or prolong a resolution of litigation or to harass and

maliciously injure another." That's from 130-1.1 (c) (2). It appears to

the Court that this us what you are doing, Mr. Breytman. Under 130-1.1

(d), I have to give you a reasonable opportunity to be heard why I

shouldn't sanction you for costs.

William Schliefer, Esq., appearing on behalf of Catalano, Gallardo & Petropoulos, sought costs from plaintiff BREYTMAN for defendants SCHECHTER. The following colloquy [*6]took place, at p. 23, line 12 - p. 24, line 2:

MR. SCHLEIFER: We have spent at least ten, 15 hours between

court appearances and handling our papers to defend this. To this we

would seek the reasonable cost for at least ten hours of work.

THE COURT: Mr. Breytman.

MR. BREYTMAN: Yes, Your Honor, I am getting $200 in

food stamps. How much do you think —

THE COURT: I have no idea. You are the one that brought

the action.

MR. BREYTMAN: I would like the Court or any court to get

$1 food stamps a month from me. I am going to get so many injunctions

against the Court.

THE COURT: Mr. Breytman —

MR. BREYTMAN: It will make your head spin, Your honor.

Further, at p. 24, line 8 - p. 26, line 7, the following was stated on the record:

MR. BREYTMAN: Both Schechter and Your Honor colluded —

THE COURT: I colluded? I never met Schechter in my life. I

don't know what Schechter looks like. I never met the man.

MR. BREYTMAN: Yes, you did. He came to your court.

THE COURT: I met his attorneys. If I did, I did. I don't recall

meeting him.

MR. BREYTMAN: One time he came to your court.

THE COURT: All right, Mr Breytman, under the rules you have

an opportunity — I'm sorry, let me back up.

You have to have a reasonable opportunity to be heard today or

another date.

MR. BREYTMAN: For what?

THE COURT: For whether or not I should impose costs upon you.

MR. BREYTMAN: No, let's finish it right now. I am going to

go and appeal.

THE COURT: I am going to reserve on the sanction issue but

with respect to everything else here is what I have written. I wrote

that plaintiff's motion to restore the case to active status is a motion to

renew. Plaintiff failed to demonstrate that the Court overlooked or

misapprehended any matters of fact or law. CPLR Rule 2221 (d).

Further, the Court has no need to recuse itself. The Court is fair and

impartial. See People versus Moreno, 70 NY2d 403. That's a 1987

Court of Appeals decision.

Now with respect to whether or not I should impose costs and

sanctions upon you, obviously I will reserve decision. But let me give

you an opportunity to be heard. Mr. Schleifer said they have expended

ten hours in court appearances. What is your normal billing rate?

MR. SCHLEIFER: Your Honor, I am not 100 percent sure. [*7]

That's something that the partners would know, but I believe it's $170

an hour.

THE COURT: Now let me hear from Mr. Breytman. Tell me

why the conduct you have undertaken to move to rehash everything,

to go with all your papers is not undertaken primarily to delay or prolong

the resolution of the litigation, to harass and maliciously injure Mr.

Schechter and myself with all of the malicious comments you made

about me.

MR. BREYTMAN: Malicious comments? I am just being honest.

You call it malicious? Your Honor does not know "malicious" word

despite the fact that you are a former teacher. Your Honor has colluded

with the teacher's union and Your Honor had picketed despite the fact

that you cannot do that as judge of the courts.

Finally, the following exchange took place, at p. 27, line 9 - p. 28, line 10:MR. BREYTMAN: There is nothing frivolous in my case. I have

been in the Appellate for Second Division. I have dismissed three judges

prior to Your Honor and I will dismiss Your Honor as well.

There is absolutely — it's not sustainable, the $245 [Court costs for

defendants' successful summary judgment motion] is not sustainable.

There is definitely no way. I have no cars, no real estate, no stocks,

nothing, no bank accounts. I live from month to month, day to day in

expenses and I have spent thousands of hours on Schechter and maybe not

$175, but I have out-of-pocket expenses which Your Honor conveniently,

of course, ignored and have not added to the case. But Schechter, sure,

whatever thousands of dollars. Why don't you put a couple of billion

dollars on my name?

THE COURT: Anything else you want to tell me?

MR. BREYTMAN: Yes, there's a lot of things I want to tell you,

but they are all on the papers.

THE COURT: All right, I will review the papers.

Anything else, Mr. Schliefer?

MR. SCHLIEFER: Nothing further.

THE COURT: That's fine. I am going to reserve after giving the

plaintiff a reasonable opportunity to be heard pursuant to 22 NYCRR

section 130-1.1 (d). The Court reserves on awarding costs to the

defendant for frivolous conduct by plaintiff. So I am giving each a

copy [of my short-form order] and you will hear from me in the mail.

Have a nice day. This completes the record.

As I stated in oral argument, at p. 25, and in my above statement at the conclusion of oral argument, I issued the following short-form order:

Plaintiff's motion to restore the case to active status is a motion

to renew. Plaintiff failed to demonstrate that the Court overlooked or misapprehended any matters of fact of law. (CPLR Rule 2221 [d]).

Further, the Court has no need to recuse itself. The Court is fair and

impartial. (See People v Moreno, 70 NY2d 403 [1987]). After giving

plaintiff a reasonable opportunity to be heard, pursuant to 22 NYCRR

§ 130-1.1 (d), the Court reserves on awarding costs to defendants for

frivolous conduct by plaintiff.

After review of the papers filed with respect to the instant motion and the minutes of the June 14, 2011 hearing, pursuant to 22 NYCRR § 130-1.2, this is the "written decision setting forth the conduct on which the award or imposition [of costs and sanctions] 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."

22 NYCRR § 130-1.1 (a) gives the Court, in its discretion, the authority to

award costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorneys' fees and/or the imposition of financial sanctions upon a party or attorney who engages in frivolous conduct. 22 NYCRR § 130-1.1 (c) states that:

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 factual statements that are false.

Conduct is frivolous and can be sanctioned under the above court rule if "it is completely without merit . . . and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law." (Gordon v Marrone, 202 AD2d 104, 110 [2d Dept 1994] lv denied 84 NY2d 813 [1995]). (See RKO Properties, Inc. v Boymelgreen, 77 AD3d 721 [2d Dept 2010]; Finkelman v SBRE, LLC, 71 AD3d 1081 [2d Dept 2010]; Glenn v Annunziata, 53 AD3d 565, [2d Dept 2008]; Miller v Dugan, 27 AD3d 429 [2d Dept 2006]; Greene v Doral Conference Center Associates, 18 AD3d 429 [2d Dept 2005]; Ofman v Campos, 12 AD3d 581 [2d Dept 2006]).

In determining if sanctions are appropriate, the Court must look at the broad pattern of conduct by the offending attorneys or parties. (Levy v Carol Management Corporation (260 AD2d 27, 33 [1d Dept 1999]). The Levy Court, at 33, held that, "22 NYCRR 130-1.1 allows us to exercise our discretion to impose costs and sanctions on an errant party under circumstances particularly applicable here. The relief may include, inter alia, sanctions against the offending party or its attorney (22 NYCRR 130-1.1 [1]) in an amount to be determined by us, which we would make payable to the Lawyers' Fund for Client Protection (22 NYCRR 130-1.3)." Further, the Levy Court instructed, at 34, that "[s]anctions are retributive, in that they punish past conduct. They also are goal oriented, in that they are useful in deterring future frivolous conduct not only by the particular parties, but also by the Bar at large." The Court, in Kernisan, M.D. v Taylor (171 AD2d 869 [2d Dept 1991]), noted that the intent of the Part 130 Rules "is to prevent the waste of judicial resources and to deter vexatious litigation and dilatory or malicious litigation [*9]tactics (cf. Minister, Elders & Deacons of Refm. Prot. Church of City of New York v 198 Broadway, 76 NY2d 411; see Steiner v Bonhamer, 146 Misc 2d 10) [Emphasis added]."

Clearly, the pattern of plaintiff BREYTMAN's conduct in the instant action is subject to costs and sanctions. Plaintiff's arguments in his papers, in support of the instant motion, and in the June 14, 2011 oral argument are replete with threatening, defamatory and malicious statements about defendants SCHECHTER and the Court. They are frivolous and "completely without merit in law or fact." Plaintiff BREYTMAN failed to make any specific allegations that the Court misapprehended or overlooked any matters of fact and law. The instant motion is but another example of plaintiff's continued harassment of defendants and abuse of the judicial process, with the addition of personal invective and animus directed at the Court. The instant motion prolonged this litigation and attempts "to harass or maliciously injure" defendants SCHECHTER and the Court. In this time of budgetary cuts, combined with increased caseloads, the Court does not need to waste its scarce resources to be the arena for plaintiff BREYTMAN's personal vendettas against defendants and the Court.

Therefore, based upon the totality of plaintiff BREYTMAN'S frivolous conduct in making the instant motion, the Court finds it is appropriate to award costs of $1,700.00 to defendants SCHECHTER for 10 hours of attorney's fees at $170.00 per hour. Further, for the waste of judicial resources and "to deter vexatious litigation and dilatory or malicious litigation tactics" by plaintiff BREYTMAN, the Court, in its discretion, imposes financial sanctions of $2,500.00 upon plaintiff BREYTMAN.

ORDERED that, the instant motion of plaintiff ALEXANDER BREYTMAN seeking to reargue my February 8, 2011 decision and order and upon granting reargument seeking: my recusal; sealing of the case; leave to amend the complaint; and, continued discovery; is denied, and it is further

ORDERED, that after conducting a hearing on June 14, 2011, to determine if plaintiff ALEXANDER BREYTMAN engaged in "frivolous conduct," as defined in the Rules of the Chief Administrator, 22 NYCRR § 130-1.1 (c), and that plaintiff ALEXANDER BREYTMAN was granted "a reasonable opportunity to be heard," pursuant to the Rules of the Chief Administrator, 22 NYCRR § 130-1.1 (d), the Court finds that plaintiff ALEXANDER BREYTMAN engaged in "frivolous conduct," as defined in 22 NYCRR § 130-1.1, in the instant matter, and it is further

ORDERED that plaintiff ALEXANDER BREYTMAN, pursuant to the Rules of the Chief Administrator, 22 NYCRR § 130-1.2, shall pay costs of $1,700.00 to defendants DONALD SCHECHTER and DONALD SCHECHTER, P.C., c/o Catalano, Gallardo & Petropoulos, LLP, 100 Jericho Quadrangle, Suite 214, Jericho, New York 11753, for reasonable attorneys' fees in defending against the instant motion of plaintiff ALEXANDER BREYTMAN, within thirty (30) days after service of the notice of entry of this decision and order, and it is further

ORDERED that plaintiff ALEXANDER BREYTMAN, pursuant to the Rules of the Chief Administrator, 22 NYCRR § 130-1.3, shall pay a sanction of $2,500.00, to the Lawyer's Fund for Client Protection, 119 Washington Avenue, Albany, NY 12210, within thirty (30) days [*10]after service of the notice of entry of this decision and order.

This constitutes the Decision and Order of the Court.

ENTER

___________________________

HON. ARTHUR M. SCHACKJ. S. C.