Opinion
2019–07492, 2019–07493 Index No. 18430/09
09-01-2021
CITIMORTGAGE, INC., respondent, v. Everette WEAVER, appellant, et al., defendants.
Everette Weaver, Hopewell Junction, NY, appellant pro se. Akerman LLP, New York, N.Y. (Jason D. St. John and Jordan M. Smith of counsel), for respondent.
Everette Weaver, Hopewell Junction, NY, appellant pro se.
Akerman LLP, New York, N.Y. (Jason D. St. John and Jordan M. Smith of counsel), for respondent.
MARK C. DILLON, J.P., FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendant Everette Weaver appeals from two orders of the Supreme Court, Kings County (Peter P. Sweeney, J.), both dated April 12, 2019. The first order, inter alia, appointed a referee to compute the amount due to the plaintiff. The second order (a) denied the motion of the defendant Everette Weaver to refer the plaintiff and various related persons to the Kings County District Attorney's Office for a criminal investigation, to refer the plaintiff's attorneys for professional disciplinary action, and for recusal, and (b) granted the plaintiff's cross motion to enjoin the defendant Everette Weaver from filing any additional papers in this action without prior court approval.
ORDERED that the appeal from the first order dated April 12, 2019, is dismissed as abandoned; and it is further,
ORDERED that the second order dated April 12, 2019, is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
In this foreclosure action, following the entry of an order, inter alia, granting the plaintiff leave to enter a default judgment against the defendant Everette Weaver (hereinafter the defendant) and an order of reference (see CitiMortgage, Inc. v. Weaver, 197 A.D.3d 1087, 150 N.Y.S.3d 605 [Appellate Division Docket No. 2016–13092 ; decided herewith]), the defendant moved to refer the plaintiff and various related persons to the Kings County District Attorney's Office for a criminal investigation, to refer the plaintiff's attorneys for professional disciplinary action, and for recusal.
The plaintiff opposed the motion and, citing to numerous instances of alleged frivolous motion practice by the defendant, cross-moved to enjoin the defendant from filing any additional papers in this action without prior court approval. By order dated 12, 2019, the Supreme Court denied the defendant's motion and granted the plaintiff's cross motion. The defendant appeals.
The Supreme Court providently exercised its discretion in denying the defendant's motion in its entirety, as the defendant failed to establish his entitlement to any of the relief sought.
As to the plaintiff's cross motion, "public policy mandates free access to the courts and zealous advocacy is an essential component of our legal system" ( Rossrock Fund II, L.P. v. Toledo, 186 A.D.3d 1441, 1442, 128 N.Y.S.3d 853 [internal quotation marks omitted]; see DiSilvio v. Romanelli, 150 A.D.3d 1078, 1080, 56 N.Y.S.3d 162 ). However, "a litigant can forfeit that right by abusing the judicial process through vexatious litigation" ( Rossrock Fund II, L.P. v. Toledo, 186 A.D.3d at 1442, 128 N.Y.S.3d 853 [internal quotation marks omitted]; see Dimery v. Ulster Sav. Bank, 82 A.D.3d 1034, 1035, 920 N.Y.S.2d 144 ). "In such cases, it is not improper for the court to enjoin a litigant from bringing any further motions without its permission" ( Rossrock Fund II, L.P. v. Toledo, 186 A.D.3d at 1442, 128 N.Y.S.3d 853 ; see DiSilvio v. Romanelli, 150 A.D.3d at 1080, 56 N.Y.S.3d 162 ; Dimery v. Ulster Sav. Bank, 82 A.D.3d at 1035, 920 N.Y.S.2d 144 ). Here, in light of the numerous frivolous motions filed by the defendant, the record supports the Supreme Court's conclusion that the defendant had forfeited the right to free access to the courts by abusing the judicial process, and, therefore, properly enjoined him from filing any additional papers in this action without prior court approval (see Rossrock Fund II, L.P. v. Toledo, 186 A.D.3d at 1442, 128 N.Y.S.3d 853 ; DiSilvio v. Romanelli, 150 A.D.3d 1078, 1080, 56 N.Y.S.3d 162 ; Matter of Marion C.W. [Lisa K.], 135 A.D.3d 777, 779–780, 24 N.Y.S.3d 665 ).
DILLON, J.P., CONNOLLY, IANNACCI and CHRISTOPHER, JJ., concur.