2016-01-27 - Decision - Couri v Siebert.pdf

7/26/2019 2016-01-27 - Decision - Couri v Siebert.pdf

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SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

P R E S E N T :

JAMES COURI,

P A R T 7

J u s t i c e

- against -

Plaintiff,

INDEX NO.

MOTION sea NO.

JOHN SIEBERT and JOHN W SIEBERT, MD. PC.,

D e f e n d a n t s .

The following papers, numbered 1 to 4, were read on this motion by the plaintiff to vacate a prior

Order of this Court

Notice of Motion/ Order to Show Cause ^ AffldavHs Exhibits

AnswerngAdavs Exhbs Menwp L E P

Replying Affidavits (Reply Memo)_4 ^

Cross-Motion: Yes rfib ^

(XXOTYCL gQ B

Before the Court is a motioMiYthe ^ ncS IH

the RepN^

Recommendation of Judicial Hearing Officer Ira Gammerman (JHO Gammerman) dated

December 15,2014 and entered on February 10,2015. Also before the Court is a cross-

motion by the plaintiff, dated April 6,2015, to reject the Report of JHO Gammerman claiming

Perjury, Fraud on the Court and forging and planting of Files in Motion Sequence # 67 by

Joseph Burke, for an Order (1) Rejecting entirely the illegal and fraudulent Inquest Order

grounded on Fraud, peijury and fraudulent Burke 4-1-15 Motion in violation of Beeler Injunction

mandating 'permission' and violations of mandates of Inquests [sic], conducted by default due

to my illness. (2) Vacating the Decision of 12-24-13, on the additional grounds of fraud on the

Court, Perjured order, collusion and ghostwriting by Burke of an illegally [sic] Decision belied by

evidence. (3) disqualification of Joseph M. Burke Esq. [Burke] on the grounds of fraud, perjury

and that he will be called as a witness testimony [sic] detrimental to Siebert (Plaintiff Notice of

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Cross-Motion). The defendant filed a reply afRdavft on April 8,2015.

B A C K G R O U N D

By an Order dated December 24,2013 and filed on December 26,2013, this Court .

directed the defendants to file the Note of Issue on or before January 28,2014, and upon that

filing the Court stated that the Clerk shall set a date upon which an inquest will be held

assessing damages, if any, against plaintiff on defendants' counterclaims, the only remaining

issue in this case.^

The Court, also in the December 24,2013 Order (1) granted defendants' motion to

strike and dismiss plaintifTs reply to defendants' counterclaims; (2) deemed plaintiff a vexatious

litigator and enjoined plaintiff from: (a) asserting his medical or physical condition, or medical

treatment thereof, or (b) asserting his unavailability being out of state as a reason for non

appearance or non-participation In court procedure before this Court or Special Referee or a

Court-appointee, and (c) re-issued the Orders by Justice Harold Beeier, dated February 17,

2005, and his order dated December 12,2005, in which ail parties were enjoined from takin

any further action in this matter Including, filing any motions, without prior leave of this Court.

The plaintiff appealed the December 24,2013 decision. Subsequently, this Court denied

plaintiffs request for ieave to file a motion to reargue this Court Order dated December 24,

2013 which resolved Motion Sequence 067 (see this Court's Interim Order, dated January 17,

2014 and filed on January 22,2014).

On February 26,2014, the Court held a mandatory Compliance Conference in Part 7,

Courtroom 341, 60 Centre Street, New York for this case and the duplicate case Couri v

Siebert, pending under Index No. 113512/2008 (2008 Case). Despite having notice of the

' Plaintiffs complaint and counterclaims were dismissed by the Appellate Division. First

Department in February 2008, wherein the Appellate Division granted the defendants' motion to strike the

claims based upon plaintiffs continued failure to comply with discovery demands for his tax returns, but

the defendants' counterclaim remained (see Court v Siebert, 46 AD3d 370 (1st Dept 2008]).

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conference the plaintiff, pro se, chose not to appear, without good cause for his non

appearance, and chose not to send an attorney on his behalf. The defendants appeared at the

conference and the Court proceeded to conference the cases. On February 27,2014, this

Court received an incomplete draft copy of a United States Bankruptcy Court filing by facsimile

from the plaintiff, without valid proof of service to the defendants, which violates this Court's

Rules. Nonetheless, given the seriousness of such a filing, this Court contacted the United

States Bankruptcy Court and discovered that on Friday, February 28,2014, plaintiff filed a

Chapter 7 Bankruptcy Petition in The United States Bankruptcy Court, Central District of

California, Riverside Division, seeking to discharge the debt in this case. The Bankruptcy

Petition filing automatically stayed this State Court proceeding, pursuant to 11 U.S.C. 362

(see Case No. 6:14-bk-12555-WJ).

On July ..15,2014, the United States Bankruptcy Court in Caltfomia granted the

defendants' motion to vacate the automatic stay, pursuant to 11 U.S.C. 362. On July 24,

2014, the plaintiff then filed a Notice of Removal for removal of the herein case (2004 Case)

(Case No. 6:14-bk- 12555-WJ, Adv. Proceeding 6:14-ap-01192-WJ) and the 2008 Case (Case

No. 6:14-bk- 12555-WJ, Adv. Proceeding 6:14-ap-01190-WJ). This Court received Copies of

the Notices to Remove on July 29,2014, which stayed this Court from proceeding.

On August 21,2014, the Honorable Wayne Johnson, United States Bankruptcy Court

Judge, held a hearing on the plaintiff's application, including the defendant's opposition, and

granted the defendants' motion to remand both Couri cases back to the New York State

Supreme Court.T On September 2,2014, Judge Johnson also dismissed the plaintifTs Chapter

. 7 Bankruptcy Petition, BK-12555-WJ. The Bankruptcy Court Orders granting the defendants'

motion to remand the cases to the New York State Supreme Court were entered in this Court

on October 3,2014 (Index No. 113512/2008) and October 14,2014 (Index No. 107240/2004).

On September 18,2014, Judge Johnson also terminated and closed the plalntifTs Removal

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actions (Case No, 6:14-bk-12555-WJ, Proceeding 6:14-ap-01192-WJ and Adv. Proceeding

6:14-ap-01190-WJ).

Subsequently, on December 15,2014, JHO Gammerman held an Inquest, and Issued

his report on the record on that day. At the inquest the defendants' counsel appeared in-person

and the plaintiff, pro se, appeared by telephone. The transcript reflects that at some point near

the beginning of the inquest, plaintiff hung up the telephone and refused to participate in the

inquest, claiming the actions of JHO Gammerman were fraudulent and that he tacked notice.

However, as plaintiff had filed an appeal of the December 24,2013 Order which set this matter

down for an inquest, and having also requested leave to reargue the December 24,2013

Order, it Is evident that plaintiff was aware that the inquest was pending (see Court interim

order dated January 17,2014 and entered on January 24,2014). Moreover, the transcript from

the inquest Indicates that JHO Gammerman tried to inquire as to whether plaintiff had sought

an adjournment or stay of the inquest and also offered plaintiff an adjoumment, but such inquiry

was Ignored or refused (see December 15,2014 Transcript p. 3, line 12 and p. 5, line 3). Thus,

on December 15,2014, after taking defendants' sworn testimony, JHO Gammerman

recommended to this Court Judgment In favor of the defendants' on their counterclaims in the

amount of $7,110,532.00, with interest from August 18,2003 (see December 15, 2014

Transcript p. 16, line 7, to p. 17 line 15).

Thereafter, In an Interim Order dated and entered on January 8,2015, this Court

granted the parties leave to file a motion to confirm or reject JHO Gammerman's report. On

February 10, 2015, JHO Gammerman So-Ordered the transcript of the inquest proceeding and

submitted the Report and Recommendation to the County Clerk's Office.

The defendants secured a copy of JHO Gammerman's Report and Recommendation on

March 25,2015 and moved to confirm the Report by notice of motion dated April 1, 2015. In

their motion papers, defendants attached as exhibits, inter alia, the Referee's Report Transcript,

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the amended verified complaint, defendants' amended answer with counterclaims, a copy of the

Appellate Division. First Department decision in Couri v Siebert, 48 AD3d 370 [1st Dept 2008], a

copy of this Court's Order December 24,2013, and a copy of the Note of Issue, filed on

January 27,2014. The plaintiff files a cross-motion by the plaintiff, dated April 6,2015, to

reject the Report of JHO Gammerman claiming Perjury, Fraud on the Court and forging and

planting of RIes in Motion Sequence # 67 by Joseph Burke, for an Order (1) Rejecting entirely

the illegal and fraudulent Inquest Order grounded on Fraud, perjury and fraudulent Burke 4-1-

' /

15 Motion in violation of Beeler Injunction mandating 'permission' and violations of mandates of

Inquests [sic], conducted by default due to my illness. (2) Vacating the Decision of 12-24-13, on

the additional grounds of fraud on the Court, Perjured order, collusion and ghostwriting by

Burke of an illegally [sic] Decision belied by evidence. (3) disqualification of Joseph M. Burke

Esq. [Burke] on the grounds of fraud, perjury and that he will be called as a witness testimony

[sic] detrimental to Sieberf (Plaintiff Notice of Cross-Motion). The defendant filed a reply

affidavit.

DISCUSSION

It is wel|,settled that the report of a Special Referee shall be confirmed whenever the

findings contained therein are supported by the record and the Special Referee has clearly

defined the issues and resolved matters of credibility {Steingart v Hoffman, 80 AD3d 444,445

[1st Dept 2011], citing Nagerv Panadis, 238 AD2d 135,135-136 [let Dept 1997]; see also

Melnitzky v Uribe, 33 AD3d 373 [1st Dept 2006]; Kaplan v Einy, 209 AD2d 248 [1st Dept 1994];

Namer v 152-54-56 W. 15th St Realty Co/p.,108 AD2d 705 [1st Dept 1985] Iv dismissed sub

nom Walker v Sant'Andrea, 72 NY2d 954 [1988]). The Special Referee is considered to be in

the best position to determine the issues presented {Nagerv Panadis, 238 AD2d at 136).

The Court finds that, contrary to plaintiffs assertions, the record fully supports JHO

Gammerman's findings and conclusions of law. It is evident in JHO Gammerman's Report that

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he thoroughly reviewed the files, was familiar with the case, heard the plaintifPs opposition to

the Inquest, the testimony of witnesses that were subject to any cross examination by the

plaintiff had he not hung up, and his findings are supported by the hearing transcript, warranting

confirmation (see Adelaide Prods., Inc. v BKN Intl. AG, 51 AD3d 598 [1st Dept 2008] H^e

Special Referee clearly defined the issues and resolved matters of credibility, and had ample

support of those findings in the record and his report warranted confirmance ]; see a/so Nager v

Panadls, 51 AD3d 598 [1st Dept 1998]). Based upon the foregoing, defendants' motion to

confirm the Report and Recommendation of JHO Gammerman is granted and plaintiffs cross-

motion to reject the Referees Report is denied (see Maker of Smythe v Goord, 41 AD3d 608

[2d Dept 2007] [There Is no evidence in the record to support the [plaintiff]'s contention that the

hearing officer was biased... and there Is no indication that the outcome of the hearing was

affected by any alleged bias on the part of the hearing officer ]).

Specifically, the portion of pialntifPs cross-motion seeking to reject JHO Gammerman's

Report and Recommendation as iliegal and based on fraud and perjury by defendant's attorney

Burke and in violation of Justice Beeier's Order mandating the parties secure 'permission'

before filing, is denied. The record does not support any fraud or perjury by defendants or their

attorney Burke. This Court also granted leave for the parties to file applications to confirm or

reject JHO Gammerman's Report, thus complying with Justice Harold Beeier's Order and this

Court's Order dated December 24,2013.

The portion of plaintiffs cross-motion to vacate this Court's order, dated December 24,

2013, sixteen months after the initial decision Is denied. Plaintiff makes this application after he

failed to perfect his appeal, or secure a stay of the decision from the Appellate Court and after

the Court has cj nied his previous motion to reargue as frivolous, without merit, and totally

unsupported by the Court record or the plaintiffs affidavit {see 22 NYCRR 130.1-1). The

motion to vacate is identical to the motion the plaintiff filed In motion sequence 068, blatantly

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violating the Court's previous Order and without leave of the Court Moreover, the Court

additionally finds that the herein application is indicative of a pattern by the plaintiff to

continually file multiple motions to vacate or reargue decisions, without sufficient support, that

have been adversely ruled against him.

Regarding tfie plaintifPs cross-motion to disqualify Joseph Burke, deferidants' counsel, it

is well settled that [Qhe disqualification of an attorney is a matter that rests within the sound

discretion of the courf {Flores v WillarxJ J. Price Assocs., LLC, 20 AD3d 343,344 [1st Dept

2005]; see Wells FSrgo Bank, N.A. v Cam, 82 AD3d 880, 881 [2d Dept 2011]; Falk v Gallo, 73

AD3d685,685[2dDept2010];Ha/77SvScu/co,86AD3d481,481 [1stDept2009]). Thertght

to counsel is not absolute and may be overridden where necessary... but it is a valued right

and any restriction must be carefully scrutinized (S & S Hotel Ventures Ltd. Partnership v tn

S.H. Corp., 69 NY2d 437,443 [1987]; see Matter of Abrams [John Anonymous], 62 NY2d 183,

196 [1984]). A par s entitlement to be represented in ongoing litigation by counsel of his or

her own choosing.:. should not be abridged absent a clear showing that disqualification is

warranted {Gulino y Gulino, 35 AD3d 812,812 [2d Dept 2008]; seeS&S Hotel Ventures Ud.

Partnership, 69 NY2d at 443; Matter of Abrams, 62 NY2d at 196; Campolongo v Campolongo,

2 AD3d 476,476 [2d Dept 2003]; Domlnguez v Community Health Plan of Suffolk, 284 AD2d

294,294, [2d Dept 2001]). Accordingly, motions to disqualify opposing counsel are disfavored

... and require a high standard of proof {Clao-DI Rest. Corp. v Paxton 350, LLC, 22 Misc 3d

1117[A], at *2 [Sup Ct, NY County 2008]; see Goldsmith v Ellenberg, 2013 WL 2142264, *8,

2013 NY Misc LEXIS 1997, *17 [Sup Ct, NY County 2013]; see also Northwestern Natl. Ins. Co.

V Insco, Ltd., 2011 WL 4552997, *4,2011 US Dist LEXIS 113626, *31 [SD NY 2011];

Tradewlnds Airlines, Inc. v Soms, 2009 WL 1321695, *3.2009 US Dist LEXIS 40689, *9 [SD

NY 2009]).

When considering a motion to disqualify, the court is guided, but not bound by Rule

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3.7 of the Rules of Professional Conduct (22 NYCRR 1200.0) {Harris, 86 ADSd at 481 TThe

decision whether to disqualify an attorney rests in the sound discretion of the court ]; see S&S

Hotel Ventures Ltd Partnership, 69 NY2d at 443; Falk, 73 AD3d at 686). Courts must consider

the totality of the circumstances {Ferolito v Vultaggio, 99 AD3d 19,27 [1st Dept 2012], quoting

Abselet v Satra Realty, LLC, 85 AD3d 1406,1407 [3d Dept 2011]; see Pamesy Fames, 80

AD3d 948,952 [3d Dept 2011]), and must take care to 'avoid mechanicai application of blanket

rules' {Pellegrino y Oppenheimer & Co., Inc., 49 AD3d 94,98 [1st Dept 2008], quoting Teknh

Plex, Inc. V Meyner & Landis, 89 NY2d 123,132 [1996]; see S&S Hotel Ventures Ltd.

Partnership, 69 NY2d at 444). The function of the court on such a motion is restricted to the

taking of such action as may be necessary to insure a proper representation of the parties and

fairness in the conduct of the litigation {Young v Oak Crest Park, Inc., 75 AD2d 956,957 [3d

Dept 1980]; see Booth v Continental Ins. Co., 167 Misc 2d 429,436 [Sup Ct, Westchester

County 1995]).''

The plaintiffs cross-motion to disqualify defendants counsel is denied. There is no

credible or rational basis in the Court's record to support such an application. Moreover,

plaintiffs cross-motion to disqualify Burke is at least the tenth such motion for same, and this

Court condudee that it is frivolous, totally without merit, and unsupported by the Court record,

and is designed to harass and annoy the defendant and his attorney. Thus, the cross-motion

violates Rule 130.1-1 and as such plaintiff is subject to sanctions.

Finally, plaintiff has been claiming he suffers from a serious illness since the inception of

this case since it was filed In 2004. He has chosen to proceed pro se, but continually asserts

that an illness prevents him from making Court appearances, participating in telephone

conferences, following Court orders and rules, completing discovery requests and orders or

even defending or prosecuting his cases. The Court notes that plaintiff has failed to provide

admissible evidence of such iiiness, by affidavit or otherwise. Nonetheless, the plaintiff

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continues to file multipie motions over and over and to bombard the Court with ex parte

facsimile communications, in violation of this Court's Rules. The Court once again concludes

from the hearing evidence, including telephone calls to the Court and plaintifrs abusive nature

towards Court personnel by telephone, that he continues to be a vexatious litigator and is

needlessly prolonging this action to harass the defendant, his attorney, and needlessly

exhausts this Court's resources with motions completely devoid of merit.

In addition plaintiff has been repeatedly warned about such action (see, Inter alia,

motion sequences 047,058, dated August 3,2010, motion sequences 055,054, dated July 6.

2010, p. 3 H1, motion sequences 060,061,062,063,065, dated June 30,2011, motion

sequences 042,064, dated September 27,2011, Interim Court order, dated January 17,2014,

p. 2 H 5; Interim Court Order, dated February 18,2014, p. 31| 7, motion sequence 067, dated

December 24,2013). Plaintiff was given ample notice and opportunity to avoid sanctions and

an injunction (see Fowler vConforti, 194 AD2d 394,598 NY2d 789 [Ist Depl 1993] H^e

imposition of the maximum sanction of $10,000 for frivolous conduct was appropriate In this

circumstance since plaintiff was forewarned about the dubious nature of this action and further

because the plaintiff has repeatedly engaged in vexatious litigation arising from the original...

case ]).

CONCLUSION

Accordingly it is,

ORDERED that defendant's motion pursuant to CPLR 4403 and 202.44 of the

Uniform Rules for the New York Supreme Court to confirm in its entirety the Report and

Recommendation of JHO Ira Gammerman, dated February 10,2015, is granted and the Report

and Recommendation is confirmed in its entirety; and it is further,

ORDERED that plaintiff's cross-motion pursuant to, Inter alia, CPLR 4403 and 202.44

of the Uniform Rules for the New York Supreme Court to reject the Report and

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Recommendation of JHO Ira Gammerman, dated February 10,2015 is denied in its entirety;

and it is further,

ORDERED that defendants are awarded judgment on their counterclaims against the

plaintiff in the amount of $7,110,532.00, with interest frorp August 18,2003; and it is further,

ORDERED that the Orders of Justice Harold Beeler, and the Order of this Court dated

December 12,2005 are still In place and are reissued, and the herein parties are enjoined from

taking any further action in this matter including, filing any motions, or filing any new actions

before this Court, without prior leave of the Administrative Justice of this Court; and it is further,

ORDERED that plaintiff Is continued to be deemed a vexatious litigator and is enjoined

from: (1) asserting his medical or physical condition, or medical treatment thereof, or (2)

asserting his unavailability being out of state as a reason for non-appearance or non-

participation in 'dburt procedure before this Court or Special Referee or any Court-appointee

thereof; and it is further,

ORDERED that the Clerk of the Court and the County Clerk of New York County are

ordered not to accept any further papers in connecticn with this matter, including any motions,

nor is plaintiff allowed to commence any new actions without prior leave of the Administrative

Justice of this Court; and it is further,

ORDERED that the defendants shall serve a copy of this Order with Notice of Entry on

the plaintiff James Couri and the Clerk of the Court who is directed to enter judgment

a c c o r d i n g l y . ^ ^

This coristitutes the Decision and O^r of the Court.

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