Opinion
2011-0547
07-17-2014
Frederick J. Neroni, Plaintiff, v. Richard Harlem, ESQ., RICHARD HARLEM AS THE EXECUTOR OF THE ESTATE OF ROBERT HARLEM, ERIC V. JERVIS, ESQ., HARLEM & JERVIS, Attorneys At Law, HARLEM & HARLEM, Attorneys At Law, PATRICIA KNAPP, CRISTINE REED, DANIEL MOKAY, individually and As the Executor of the Estate of ANDREW MOKAY SR. (father), ANDREW MOKAY (son), and DAVID MOKAY, Defendants.
COUNSEL FOR PLAINTIFF: NERONI LAW OFFICE BY:TATIANA NERONI, ESQ., OF COUNSEL 203 MAIN STREET DELHI, NY 13753 COUNSEL FOR HARLEM DEFENDANTS (RICHARD HARLEM, ESQ., RICHARD HARLEM AS THE EXECUTOR OF THE ESTATE OF ROBERT HARLEM, ERIC V. JERVIS, ESQ., HARLEM & JERVIS, ATTORNEYS AT LAW, HARLEM & HARLEM, ATTORNEYS AT LAW): HISCOCK & BARCLAY, LLP BY:DAVID B. CABANISS, ESQ., OF COUNSEL 80 STATE STREET ALBANY, NY 12207 COUNSEL FOR MOKAY CHILDREN DEFENDANTS (PATRICIA KNAPP, CRISTINE REED, DANIEL MOKAY, INDIVIDUALLY AND AS THE EXECUTOR OF THE ESTATE OF ANDREW MOKAY, SR. and ANDREW MOKAY): HARLEM and JERVIS BY:RICHARD A. HARLEM, ESQ., OF COUNSEL 493 CHESTNUT STREET, SUITE 2 ONEONTA, NY 13820 DAVID MOKAY, DEFENDANT PRO SE (NO APPEARANCE) 105 SAWMILL ROAD DELHI, NY 13753
COUNSEL FOR PLAINTIFF:
NERONI LAW OFFICE
BY:TATIANA NERONI, ESQ., OF COUNSEL
203 MAIN STREET
DELHI, NY 13753
COUNSEL FOR HARLEM DEFENDANTS
(RICHARD HARLEM, ESQ., RICHARD HARLEM
AS THE EXECUTOR OF THE ESTATE OF ROBERT
HARLEM, ERIC V. JERVIS, ESQ., HARLEM &
JERVIS, ATTORNEYS AT LAW, HARLEM &
HARLEM, ATTORNEYS AT LAW):
HISCOCK & BARCLAY, LLP
BY:DAVID B. CABANISS, ESQ., OF COUNSEL
80 STATE STREET
ALBANY, NY 12207
COUNSEL FOR MOKAY CHILDREN
DEFENDANTS (PATRICIA KNAPP,
CRISTINE REED, DANIEL MOKAY,
INDIVIDUALLY AND AS THE EXECUTOR
OF THE ESTATE OF ANDREW MOKAY, SR.
and ANDREW MOKAY):
HARLEM and JERVIS
BY:RICHARD A. HARLEM, ESQ., OF COUNSEL
493 CHESTNUT STREET, SUITE 2
ONEONTA, NY 13820
DAVID MOKAY, DEFENDANT PRO SE
(NO APPEARANCE)
105 SAWMILL ROAD
DELHI, NY 13753
Ferris D. Lebous, J.
This is a motion by plaintiff seeking "[t]o vacate all orders of Judge Becker against adverse [sic] to Plaintiff and his counsel based on new evidence of retaliation across several court proceedings by Judge Becker against Plaintiff Frederick J. Neroni and his counsel and spouse Tatiani Neroni" (Plaintiff's Motion Note of Issue). All of the defendants oppose the motion with the exception of David Mokay who failed to appear which is discussed hereinbelow (Infra, p 12).
At the commencement of oral argument, plaintiff moved to strike the opposing papers submitted from The New York State Attorney General's Office because they are not a named party. The court notes, however, that it is plaintiff that served the moving papers on the Attorney General's Office in the first instance. The Attorney General's Office indicates an interest in this motion because of the attack on unrelated cases. The court accepts the submissions from The New York State Attorney General's Office as part of this record.
Defendants Patricia Knapp, Cristine Reed, Daniel Mokay, individually and as the Executor of the Estate of Andrew Mokay Sr. (father), Andrew Mokay (son) (hereinafter collectively sometimes the Mokay Children Defendants) also cross-move for an order requiring plaintiff, Frederick J. Neroni, and plaintiff's counsel, Tatiana Neroni, Esq., to obtain pre-approval prior to filing any further motions and/or commencing any further actions. However, the court advised counsel that the cross-motion would be adjourned without date and, as such, is not addressed herein.
The court and counsel had previously agreed upon a briefing schedule and date for oral argument on plaintiff's motion. Consideration of the cross-motion at this juncture would have required further delays and was not necessary to a resolution of the issues raised in plaintiff's motion.
The court will assume familiarity with the interconnected history of this action and related actions at both the trial and appellate levels. Briefly, however, this matter was reassigned to this court in January 2013 for the sole purpose of determining an award of attorney's fees directed by the Hon. Carl F. Becker in an Order dated January 5, 2012 (Frederick J. Neroni v Richard Harlem, et al., Sup Ct, Delaware County, January 5, 2012, Becker, J., Index No. 2011-547). Justice Becker had held a hearing to determine the amount of attorney's fees to be awarded, but before Justice Becker could render a written decision, Mr. Neroni commenced an action against Justice Becker in the United States District Court (Neroni v Becker, 2012 WL 6681240 [ND NY, Dec 21, 2012]) at which point Justice Becker recused himself from the case.
Mokay v Mokay and Neroni, 67 AD3d 1210 (3d Dept 2009); Mokay et al., v Connie M. Mokay and Frederick J. Neroni, Sup Ct, Delaware Index No. 2007-0695; Matter of Neroni, 86 AD3d 710 (3d Dept 2011), lv dismissed 17 NY3d 851 (2011); Neroni v Becker, 2012 WL 6681204 (NDNY Dec. 21, 2012).
The court will set forth the procedural machinations that have transpired since this matter was assigned in January 2013. On February 21, 2013, this court held a conference call with counsel wherein it was agreed that the scheduling of another hearing on attorney's fees would be held in abeyance pending resolution of plaintiff's appeal of Judge Becker's Order dated January 5, 2012. Also at that time, plaintiff's counsel indicated she declined to consent to the substitution of an estate representative for Robert Harlem who had passed in September 2012. Thus, defendants were compelled to file a formal motion to seek the most simplest form of relief.
In a Decision and Order dated May 20, 2013, this court granted defendants' motion for an order pursuant to CPLR § 1015 (a) substituting Richard Harlem as Executor of the Estate of Robert Harlem, deceased, as a defendant in place of defendant Robert Harlem in this action. The court's Decision and Order further stated "[u]pon resolution of the pending appeal of Justice Becker's Order dated January 5, 2012, this court will hold an attorney conference to schedule a hearing on the issue of attorney's fees awarded in said order" (Frederick J. Neroni v Richard Harlem, et al., Sup Ct, Delaware County, May 20, 2013, Lebous, J., Index No. 2011-547, Decision & Order, p 10).
Thus, further proceedings in this matter were held in abeyance pending resolution of plaintiff's appeal of Judge Becker's Order. On September 19, 2013, the Third Department dismissed plaintiff's appeal of Judge Becker's Order.
On September 25, 2013, defense counsel submitted a written request to this court to schedule a hearing on attorney's fee in light of the dismissal of plaintiff's appeal. On September 27, 2013, Ms. Neroni advised the court that she opposed the scheduling of a hearing. In October 2013, chambers attempted to schedule a conference to discuss scheduling. However, on October 23, 2013, Ms. Neroni advised chambers she was on medical leave until the end of October 2013.
In light of Ms. Neroni's medical leave, the court rescheduled the attorney conference for January 24, 2014. On January 17, 2014, Ms. Neroni submitted a letter stating she was on another medical leave for 10 days and requested an adjournment of the conference. On January 19, 2014, Ms. Neroni submitted another letter stating she was on medical leave until March 17, 2014. On January 21, 2014, chambers confirmed by letter that the January 24, 2014 conference was adjourned and would be rescheduled to a future date.
On April 8, 2014, after the expiration of Ms. Neroni's medical leave, chambers sent a letter to counsel advising the attorney conference had been rescheduled for May 21, 2014. Thereafter, Ms. Neroni telephoned chambers asking for a motion return date. The court advised
Ms. Neroni that the court would not entertain motions prior to the conference. Notwithstanding those instructions, on April 18, 2014, Ms. Neroni filed the instant motion and inserted a submitted return date of May 1, 2014 on her motion note of issue. By letter dated April 22, 2014 the court advised the parties that May 1, 2014 was not the court assigned return date and that a return date would be selected at the May 21, 2014 conference.
Plaintiff and plaintiff's counsel allege this court denied them an opportunity to file a motion, which is simply not the case. This court has the inherent power to control its own calendar including the setting of return dates on motions (Travelers Ins. Co. v New York Yankees, 102 AD2d 851 [2d Dept 1984]).
On April 24, 2014, Ms. Neroni submitted a letter to the court, together with a medical excuse from work from April 22, 2014 to May 7, 2014. On April 28, 2014, the court advised the parties that the May 21, 2014 conference would remain as scheduled and that a motion return date would be set at that time.
The court notes for the record that plaintiff's letter to this court dated April 24, 2014 threatens to "prepare a motion to recuse" and accuses this court of denying plaintiff "access to court for political reasons" (Neroni letter dated April 24, 2014). The court simply notes that this court is not the first to be on the receiving end of plaintiff and counsel's accusations and conspiracy theories. On September 19, 2013, the Third Department dismissed plaintiff's appeal from Judge Becker's Order. To be clear, from that point forward, this court has simply been attempting to schedule a hearing on attorney's fees originally awarded by Judge Becker. While the matter was properly held in abeyance from the time of reassignment in January 2013 to September 19, 2013 until resolution of the appeal, the delay since that time is attributable to plaintiff and plaintiff's counsel.
The court held the attorney conference on May 21, 2014 and, at that time, set a briefing schedule and date for oral argument on the motion. The court heard oral argument from counsel as agreed on June 19, 2014.
During oral argument, plaintiff's counsel objected to Mr. Cabaniss' use of a CD in his affirmation of opposition in lieu of attaching over 300 pages of exhibits. The court directs Mr. Cabaniss to file a paper copy of said exhibits with the Delaware County Clerk's Office and to provide plaintiff's counsel with a courtesy copy as well.
DISCUSSIONPlaintiff argues that all orders of the Hon. Carl F. Becker in this case, Index No. 2011-0547, and a litany of other cases not assigned to this court, should be vacated based upon newly discovered evidence pursuant to CPLR § 5015 (a) (2).
The other cases include:
•Bracci v Becker, Delaware Index No. 20110432
•Bracci v Adams, Delaware Family Court File No. 6995
•Shields v Carbone, Delaware Index No. 20090440
•M & C Brothers, Inc. v Torum, Delaware Index No. 20070280
•Martens v Neroni, Delaware Index No. 2011432
•Bracci v Becker, 2013 WL 123810 [N.D.NY, January 9, 2013]
•Mokay v Mokay, Delaware Index No. 2007695
Only one of the cases cited by plaintiff is assigned to this court (Index No. 2011-0547). To the extent that plaintiff requests this court vacate any order of another court or judge, this court simply has no authority to assign cases to itself or any authority to vacate any order of any other judge of the same court or any court (CPLR § 2221; Citizens for St. Patrick's v Saint Patrick's Church of West Troy, et al., 117 AD3d 1213 [3d Dept 2014]; George W. Collins, Inc. v Olsker-McLain Indus., 22 AD2d 485 [4th Dept 1965]). Consequently, that portion of plaintiff's motion which seeks to vacate any order by the Hon. Carl F. Becker in any other action is denied. Thus, the court will examine the rest of plaintiff's motion solely in the context of Index 2011-0547 which is the only action assigned to this court.
Plaintiff is asking this court to vacate the Order of the Hon. Carl F. Becker dated January 5, 2012 due to newly discovered evidence.
It is well-settled that newly discussed evidence will only be sufficient to reopen a judgment or order if the new evidence would 'probably' change the result and could not have been discovered earlier (CPLR § 5015 [a][2]). Moreover, a motion to vacate a prior judgment or order is addressed to the court's sound discretion (Pritchard v Curtis, 101 AD3d 1502, 1503 [3d Dept 2012]).
The newly discovered evidence presented by plaintiff are affidavits from Mr. Neroni and Alecia Bracci, a client of Ms. Neroni whose case was heard by Judge Becker. With respect to Mr. Neroni's affidavit, he avers that he is now just beginning to understand the level of resentment that Judge Becker holds against him alleging that Judge Becker "was jealous of my wealth his whole life"; "being my rival in everything for 40 years"; and that "Judge Becker's sanctions against me and my wife were a retaliation for the lawsuits we filed and should be vacated, as well as the order of dismissal which also now appears to be part of pattern of retaliation of Judge Becker after my wife and I sued him in state and federal court" (Affidavit of Frederick J. Neroni sworn to April 18, 2014, ¶¶ 1, 12 & 47). For her part, Ms. Bracci's affidavit alleges Judge Becker's retaliatory behavior occurred in connection with proceedings in Delaware County Family Court in 2008 and in 2009-2010 and "a secret indicated report", as well as her subsequent federal court lawsuit against Judge Becker (Bracci Affidavit, ¶ 22).
Quite simply, CPLR § 5015 cannot serve as a substitute for an appeal and/or for matters in which appellate rights have lapsed which could have been addressed on a prior appeal (Matter of McKenna v County of Nassau, Off. of County Attorney, 61 NY2d 739 [1984]). All of the issues raised by the submissions herein could have and/or should have been raised on appeal. Moreover, plaintiff has not offered any explanation as to why the affidavits of Mr. Neroni or Ms. Bracci could not have been submitted at an earlier time (Martocci v Bowaskie Ice House, LLC, 31 AD3d 1021 ). Additionally, plaintiff presents no coherent argument as to how this so-called newly discussed evidence - the Affidavits - would have changed the award of sanctions by Justice Becker since they are merely repetitive of previously made arguments and contain no "newly discovered" evidence at all (CPLR § 5015 [a][2]). Suffice it to say, that plaintiff has utterly failed to satisfy the burden required to vacate an order based upon newly discovered evidence.
To the extent that plaintiff raises issues of disqualification of Hiscock & Barclay, that issue too could have been raised earlier.
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Additionally, the court finds that plaintiff's motion is also barred by the doctrines of res judicata, collateral estoppel and law of the case.
Res judicata, also known as claim preclusion, holds that, as to parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action and forecloses the parties from relitigating those issues or from raising issues or defenses that might have been litigated in the first suit (Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485 [1979]). This State has adopted a transactional analysis approach in deciding res judicata issues such that once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if they are based upon different theories or seek a different remedy (O'Brien v City of Syracuse, 54 NY2d 353, 357 [1981]). Plaintiff's motion to vacate the January 5, 2012 Order is an improper collateral attack on that Order. Plaintiff's appeal of said Order was dismissed and plaintiff cannot now attempt to relitigate any issues including sanctions addressed therein.
Collateral estoppel is a species of res judicata, but it has its own distinguishing characteristics. Unlike res judicata, collateral estoppel does not require a showing that the issue arose from the same cause of action or the same transaction as the prior litigation (Gramatan Home Invs. Corp., 46 NY2d at 485). The doctrine is grounded upon concepts of fairness, however, and should not be rigidly or mechanically applied where it would be inequitable to do so (D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]).
Generally speaking, the application of collateral estoppel against a particular party requires the following proof: (1) that the identical issue was necessarily decided in the prior action; (2) that the party was also a party to the prior proceeding or was in some way in privity with the party against whom the prior finding was made; and (3) that the party to be precluded from relitigating the issue (or his privy) had a full and fair opportunity to litigate the matter in the earlier action (D'Arata, 76 NY2d 659). The burden of demonstrating that the issues raised are identical rests with the proponent of the estoppel while the burden of demonstrating that there was no full and fair opportunity to litigate rests with the opponent of collateral estoppel (Ryan v New York Tel. Co., 62 NY2d 494, 501 [1984]). The defendants have established to the court's satisfaction that plaintiff is again raising issues regarding a bias by Justice Becker that were previously raised and decided in another case (Mokay v Mokay, 111 AD3d 1175 [3d Dept 2013]). The same issues were fully argued in that case so that plaintiff should not now be allowed to relitigate a matter that plaintiff had the opportunity to fully present before.
Finally, the law of the case has been described as "a kind of intra-action res judicata" with the purpose of preventing relitigating issues already determined in the litigation (Siegel, NY Prac § 448 at 781 [5th ed 2010]; George W. Collins, Inc., 22 AD2d at 489). Here, plaintiff's prior arguments against dismissal of his underlying case, request that Justice Becker recuse himself, and arguments against sanctions have all failed. Plaintiff filed a notice of appeal but his appeal was dismissed. Consequently, the Order dated January 5, 2012 is the law of the case and also bars relitigation of these issues.
Suffice it to say that plaintiff's sole remedy relative to Judge Becker's Order dated January 5, 2012 was an appeal from the same. Plaintiff filed a notice of appeal and the appeal was dismissed. Any subsequent attempts by plaintiff to vacate Judge Becker's January 5, 2012 Order are barred - either individually or collectively - by res judicata, collateral estoppel, and/or law of the cause.
Finally, to the extent that defendant David Mokay failed to appear in opposition to this motion, plaintiff asked for a default judgment against the same. For the reasons set forth herein, the court finds that since plaintiff's motion fails in the first instance, the motion with respect to David Mokay fails as well and is therefore denied.
In view of the foregoing, plaintiff's motion to vacate all orders of Judge Becker against adverse to Plaintiff and his counsel based on new evidence of retaliation across several court proceedings by Judge Becker against Plaintiff Frederick J. Neroni and his counsel and spouse Tatiana Neroni is DENIED in its entirety.
The Mokay Children Defendants' cross-motion for an order requiring plaintiff, Frederick J. Neroni, and plaintiff's counsel, Tatiana Neroni, Esq., to obtain pre-approval prior to filing any further motions and/or commencing any further actions is deemed withdrawn without prejudice.
This constitutes the decision and order of the court.
In light of the foregoing, the court will contact counsel to select a hearing date for a determination of attorney's fee.
Dated:July 17, 2014
Binghamton, New York
s/ Ferris D. Lebous
Hon. Ferris D. LebousJustice, Supreme Court
The court considered the following papers that are on file at the Delaware County Clerk's Office:
1.Motion Note of Issue submitted April 18, 2014;
2.Affidavit of Tatiana Neroni, Esq. sworn to April 18, 2014, together with exhibits;
3.Supporting Affidavit of Frederick J. Neroni sworn to April 18, 2014;
4.Supporting Affidavit of Alecia Bracci sworn to April 18, 2014;
5.Letter dated April 24, 2014 from Tatiana Neroni, Esq. to the Hon. Ferris D. Lebous;
6.Affidavit of David B. Cabaniss, Esq. sworn to June 10, 2014 with exhibits on CD;
7.Memorandum of Law in Opposition to the plaintiff's motion of Hiscock & Barclay, LLP (David B. Cabaniss, Esq.);
8.Letter dated June 18, 2014 from David B. Cabaniss, Esq.;
9.Notice of Cross-Motion dated June 10, 2014;
10.Combined Affidavit of Richard A. Harlem, Esq. and Memorandum of Law in Reply to Plaintiff's Motion and in Support of Defendants' cross-Motion sworn to June 10, 2014, with exhibits; and
11.Affirmation in Opposition of Michael J. Danaher, Jr., AAG, with Memorandum of Law.