Opinion
No. 456 CA 21-01807
06-03-2022
ALBERT G. FRACCOLA, JR., INDIVIDUALLY, ETC., PLAINTIFF-APPELLANT, v. 1ST CHOICE REALTY, INC., A DOMESTIC CORPORATION IN DISSOLUTION, ET AL., DEFENDANTS, GETNICK, LIVINGSTON, ATKINSON, GIGLIOTTI AND PRIORE, LLP, AND THE ESTATE OF PHYLLIS FRACCOLA, ALSO KNOWN AS PHYLLIS S. FRACCOLA, DECEASED, DEFENDANTS-RESPONDENTS.
ALBERT G. FRACCOLA, JR., PLAINTIFF-APPELLANT PRO SE. GETNICK LIVINGSTON ATKINSON & PRIORE, LLP, UTICA (PATRICK G. RADEL OF COUNSEL), FOR DEFENDANT-RESPONDENT GETNICK, LIVINGSTON, ATKINSON, GIGLIOTTI AND PRIORE, LLP. PETER M. HOBAICA, LLC, UTICA (PETER M. HOBAICA OF COUNSEL), FOR DEFENDANT-RESPONDENT THE ESTATE OF PHYLLIS FRACCOLA, ALSO KNOWN AS PHYLLIS S. FRACCOLA, DECEASED.
ALBERT G. FRACCOLA, JR., PLAINTIFF-APPELLANT PRO SE.
GETNICK LIVINGSTON ATKINSON & PRIORE, LLP, UTICA (PATRICK G. RADEL OF COUNSEL), FOR DEFENDANT-RESPONDENT GETNICK, LIVINGSTON, ATKINSON, GIGLIOTTI AND PRIORE, LLP.
PETER M. HOBAICA, LLC, UTICA (PETER M. HOBAICA OF COUNSEL), FOR DEFENDANT-RESPONDENT THE ESTATE OF PHYLLIS FRACCOLA, ALSO KNOWN AS PHYLLIS S. FRACCOLA, DECEASED.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND WINSLOW, JJ.
Appeal from an order of the Supreme Court, Oneida County (Patrick F. MacRae, J.), entered June 29, 2021. The order, among other things, denied the motion of plaintiff to vacate a prior order dismissing the complaint.
It is hereby ORDERED that the order so appealed from is unanimously affirmed with costs.
Memorandum: Plaintiff commenced this action individually and on behalf of others asserting various causes of action stemming from allegedly fraudulent deeds transferring property of defendant 1st Choice Realty, Inc. (1st Choice), of which plaintiff owned shares, to Phyllis Fraccola (decedent), plaintiff's now-deceased ex-wife and former business partner. Those deeds were prepared by decedent's counsel based upon a 2005 stipulation entered into by plaintiff and decedent to settle various lawsuits between them. Supreme Court dismissed the action sua sponte. Plaintiff moved to vacate the ensuing order, and now appeals from the subsequent order denying his motion. We affirm.
It is well settled that" '[u]se of the [sua sponte] power of dismissal must be restricted to the most extraordinary circumstances'" (Matter of Associated Gen. Contrs. of NYS, LLC v New York State Thruway Auth., 159 A.D.3d 1560, 1560 [4th Dept 2018]; see Ray v Chen, 148 A.D.3d 568, 569 [1st Dept 2017]; BAC Home Loans Servicing, LP v Maestri, 134 A.D.3d 1593, 1593 [4th Dept 2015]). We conclude that such circumstances are present here.
Although "[p]ublic policy mandates free access to the courts .., a party may forfeit that right if she or he abuses the judicial process by engaging in meritless litigation motivated by spite or ill will" (Ritchie v Ritchie, 184 A.D.3d 1113, 1117 [4th Dept 2020] [internal quotation marks omitted]; see Caesar v HSBC Bank USA, NA, 200 A.D.3d 842, 843 [2d Dept 2021]). Here, plaintiff has clearly" 'abused the judicial process by engaging in meritless, frivolous or vexatious litigation'" (Ritchie, 184 A.D.3d at 1118; see Caesar, 200 A.D.3d at 843). Plaintiff has commenced numerous actions on his behalf and on behalf of various business entities to challenge the 2005 stipulation and the deeds transferring property held by 1st Choice that were prepared after that stipulation. Based on plaintiff's repeated meritless complaints, courts have issued at least three prior orders prohibiting him from commencing actions based on the subject matter of the 2005 stipulation without prior leave of court (see generally Sassower v Signorelli, 99 A.D.2d 358, 359-360 [2d Dept 1984]). Plaintiff failed to seek permission from the court before filing this action, which clearly relates to the subject matter of the 2005 stipulation and all prior actions commenced thereafter by plaintiff. Under these circumstances, the court properly dismissed the complaint sua sponte (see Cangro v Marangos, 160 A.D.3d 580, 580 [1st Dept 2018], appeal dismissed 32 N.Y.3d 947 [2018]; Liang v Wei Ji, 155 A.D.3d 1018, 1019-1020 [2d Dept 2017]; Matter of Pavic v Djokic, 152 A.D.3d 696, 697 [2d Dept 2017]; Matter of DelVecchio v DelVecchio, 64 A.D.3d 594, 595 [2d Dept 2009]).