Summary
affirming dismissal where defendant lawyers' statements, "mainly consist of simple advocacy."
Summary of this case from Michelo v. Nat'l Collegiate Student Loan Tr. 2007-2Opinion
2014-04-10
Philip SELDON, Plaintiff–Appellant, v. LEWIS BRISBOIS BISGAARD & SMITH LLP, et al., Defendants–Respondents.
Philip Seldon, appellant pro se. Lewis Brisbois Bisgaard & Smith LLP, New York (Anthony J. Proscia of counsel), for Lewis Brisbois Bisgaard & Smith LLP, respondent.
Philip Seldon, appellant pro se. Lewis Brisbois Bisgaard & Smith LLP, New York (Anthony J. Proscia of counsel), for Lewis Brisbois Bisgaard & Smith LLP, respondent.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for Wilson Elser Moskowitz Edelman & Dicker LLP, respondent.
GONZALEZ, P.J., ACOSTA, SAXE, MANZANET–DANIELS, JJ.
Order, Supreme Court, New York County (Paul Wooten, J.), entered November 7, 2012, which, among other things, granted defendants' motions to dismiss the second amended complaint, sanctioned plaintiff in the amount of $10,000, and enjoined plaintiff from filing and serving any litigation papers in this matter on the defendants, their agents, employees or attorneys without prior court approval, unanimously affirmed,without costs. Order, same court and Justice, entered January 7, 2013, which denied plaintiff's request for permission to bring a motion to renew and/or reargue the prior motions, unanimously affirmed, without costs.
Although plaintiff's loss in the underlying action did not collaterally estop him from asserting all of his Judiciary Law § 487 claims in this action ( see generally D'Arata v. New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659, 664, 563 N.Y.S.2d 24, 564 N.E.2d 634 [1990] ), the court properly dismissed plaintiff's fraud and § 487 claims. Plaintiff's allegations do not amount to acts of deceit, and do not give rise to any inference that the defendant lawyers making the statements, which mainly consist of simple advocacy, acted with intent to deceive ( seeJudiciary Law § 487; Amalfitano v. Rosenberg, 12 N.Y.3d 8, 11–12, 874 N.Y.S.2d 868, 903 N.E.2d 265 [2009] ).
Sanctions were appropriate, given the meritlessness of plaintiff's allegations and his maintenance of them in a second amended complaint, even after having seen defendants' response to his earlier complaint ( Fowler v. Conforti, 194 A.D.2d 394, 598 N.Y.S.2d 782 [1st Dept.1993] ). Further, given plaintiff's history of vexatious litigation, the court properly required him to obtain court approval before filing or serving any litigation papers in this matter against defendants and their privies ( see Dimery v. Ulster Sav. Bank, 82 A.D.3d 1034, 1035, 920 N.Y.S.2d 144 [2d Dept.2011],appeal dismissed17 N.Y.3d 774, 929 N.Y.S.2d 75, 952 N.E.2d 1069 [2011] ).