Louis Paar and
SUZANNE DeLISI, Plaintiffs
against
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
|
2013-02406
Louis Paar
Plaintiff Pro Se
42 Bay Crest
Huntington, New York 11743
Louis Paar
Plaintiff Pro Se
707 21st Avenue South
Naples, Florida 34102
Suzanne DeLisi
Plaintiff Pro Se
56 Bay Crest Huntington, New York 11743
Suzanne DeLisi
Plaintiff Pro Se
5203 Starfish Avenue
Naples, Florida 34103
Pezold Smith Hirschmann & Selvaggio LLC
Defendant Pro Se and Attorneys for Defendant GEORGE PEZOLD
120 Main Street
Huntington, New York 11743
Hamburger Maxson Yafffe Knauer & McNally LLP
Defendant Pro Se and Attorneys for Defendant RICHARD
HAMBURGER
225 Broadhollow Road
Melville, New York 11747
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 [*2]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 AD2d 713 (2010) and 99 AD2d 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 NY 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 [*3]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 NY 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 NY 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
NY2d 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, [*4]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
[*5]arguments, as amply and repeatedly observed
personally by the Court, cannot and will not be tolerated, Jones v. Camar Realty
Corp. 167 AD2d 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 NY2d 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 AD2d 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 [*6]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.
Dated: October 6, 2014
Riverhead, New York
____________ _________________
JEFFREY ARLEN SPINNER, J.S.C.
To:
Louis Paar
Plaintiff Pro Se
42 Bay Crest
Huntington, New York 11743
Louis Paar
Plaintiff Pro Se
707 21st Avenue South
Naples, Florida 34102
Suzanne DeLisi
Plaintiff Pro Se
56 Bay Crest
Huntington, New York 11743
Suzanne DeLisi
Plaintiff Pro Se
5203 Starfish Avenue
Naples, Florida 34103
Pezold Smith Hirschmann & Selvaggio LLC
Defendant Pro Se and Attorneys for Defendant GEORGE
PEZOLD
120 Main Street
Huntington, New York 11743
Hamburger Maxson Yafffe Knauer & McNally LLP
Defendant Pro Se and Attorneys for Defendant RICHARD
HAMBURGER
225 Broadhollow Road
Melville, New York 11747