Jackson v Deer Park Ventures

[*1] Jackson v Deer Park Ventures 2005 NY Slip Op 51762(U) [9 Misc 3d 1123(A)] Decided on October 31, 2005 Supreme Court, Kings County Schack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 31, 2005
Supreme Court, Kings County

Reginald Jackson, Plaintiff,

against

Deer Park Ventures, Defendant.



1609/03



Reginald Jackson

Plaintiff, pro se

Brooklyn, NY

Jeffrey L. Saltiel, Esq.

Wenig Ginsberg Saltiel & Greene

for Defendant

Brooklyn NY

Arthur M. Schack, J.

Defendant moves for three forms of relief. First, defendant requests, pursuant to CPLR 3211 (a) (5) and CPLR 3212, summary judgment and dismissal of pro se plaintiff's complaint, because of res judicata, collateral estoppel, and plaintiff's failure to state a cause of action. Second, defendant moves for a default judgment on various counterclaims, or in the alternative to sever defendant's counterclaims for trial. Third, defendant moves to enjoin plaintiff from bringing any further litigation against defendant corporation, its principals, its agents, and its attorneys, without prior approval of the Administrative Justice.

This case has its genesis in a Civil Court, Kings County landlord-tenant nonpayment action, Deer Park Ventures, LLC v Reginald Jackson, L & T Index No. 107500/01, before the Hon. Geoffrey Wright. Judge Wright, in his January 22, 2002 decision, held that Deer Park "is entitled to a judgment for $8,331.00, the warrant shall issue forthwith without the service of a [*2]notice of entry" [exhibit A of motion]. Judge Wright denied Mr. Jackson's motion to reargue, by a decision, dated April 9, 2002 [exhibit C of motion].

Plaintiff commenced the instant action by a verified summons with notice, dated January 15, 2003 [exhibit J of motion], in which plaintiff Jackson claims in "Notice to Defendants: Nature of Action":

On January 22, 2002, the defendants gave false testimony under

oath in Civil Court before Judge Wright int eh [sic] matter of Deer Park

Ventures -vs.[sic] - Reginald Jackson HP Index No. 107500-01 causing

Judge Geoffrey Wright to decide against me, Reginald Jackson. Namely

Deer Park's witness in that case was Santos Muniz and Sharon Alston. Their lies set forth a series of events that eventually caused me, Reginald

Jackson, to lose everything I possessed. [sic]

The alleged lies are never specified. Plaintiff further states, in his verified summons with notice, in the section entitled "Negligence of Person":The lies they told were nothing but an attempt to cover up their refusing

to respond to the complaints that were made in person, by telephone, and

in writing by other tenants and myself creating this problem in the first

place. Building known as 330 Lewis Ave, Brooklyn, NY 11221-11233.Apt. in question: # 3 A. [sic]

For their unspecified false testimony, plaintiff seeks damages of $80,000 for "personal property lost," and $100,000,000 for "deliberately giving false testimony with the intentions of causing me grief by being arrested twice and being displaced from my home." [sic]

Defendant, in its answer [exhibit K of motion], interposed a general denial and affirmative defenses of: failure to state a claim based upon the testimony of witnesses who are not the defendant; failure to allege defamation with specificity; and, res judicata and collateral estoppel, as these issues and claims have been adjudicated in prior Civil Court actions. Defendant also presented seven counterclaims for unpaid rent, attorneys' fees, damages to defendant's property, damages resulting from plaintiff's frivolous lawsuits, and an injunction to prevent plaintiff from commencing further "frivolous" litigation against defendant, its agents, and its attorneys, without prior permission of the Court.

Plaintiff failed to file and serve an answer to defendant's counterclaims. Plaintiff's opposition papers, not in admissible form, responds only to defendant's motion for summary judgment. They do not address those branches of defendant's motion that request judgment on the counterclaims or enjoining plaintiff from future litigation with defendant on the same claims and issues.

For the reasons to follow, defendant's motion for summary judgment and dismissal of this action because of res judicata, collateral estoppel, and failure to allege defamation with specificity is granted. Further, plaintiff is enjoined from bringing any further actions against defendant, its attorneys and its agents without the prior approval of the appropriate Administrative Justice or Judge for any court of original jurisdiction within the New York State Unified Court System. Defendant's counterclaims are severed from the instant action for trial on the six other counterclaims presented by defendant for unpaid rent, attorneys' fees, damages to defendant's property, and damages resulting from plaintiff's frivolous lawsuits.

[*3]Summary Judgment Standard

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. See Zuckerman v City of New York, 49 NY2d 557, 562 (1980); Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Matter of Redemption Church of Christ v Williams, 84 AD2d 648, 649 (3d Dept 1981); Greenberg v Manlon Realty, 43 AD2d 968, 969 (2d Dept 1974); Winegrad v New York University Medical Center, 64 NY2d 851 (1985).

CPLR § 3212 (b) requires that for a court to grant summary judgment the court must determine if the movant's papers justify holding as a matter of law, "that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 (2d Dept 1990). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065 (1979).

Discussion

Mr. Jackson brought numerous actions in Civil Court, Kings County, against defendant corporation, his former landlord, for similar claims and issues related to the condition of his former apartment and hallway at 330 Lewis Avenue. Judge Wright, in a decision dated April 8, 2002, dismissed L& T Index No. 15718/01 [exhibit E of motion], invoking res judicata and collateral estoppel. Mr. Jackson had sought damages against Deer Park for failure to make repairs.

On April 18, 2002, Judge Wright dismissed a small claims action, SCK Index No. 6578/01 [exhibit F of motion]. Mr. Jackson had sought damages for "defective repairs" to the lock of his apartment at 330 Lewis Avenue.

Further, on April 18, 2002, Judge Wright, after a non-jury trial, dismissed Index No. 16263/01 [exhibit G of motion]. Mr. Jackson sought $1,300.00 in damages, alleging that he was the victim of a robbery in the hallway of 330 Lewis Avenue, due to the negligence of the landlord in not providing adequate security. Judge Wright, in his decision, found that Mr. Jackson "offered nothing but speculation," and failed to prove that the landlord had prior knowledge of criminal behavior and security problems in the building. Mr. Jackson appealed and Judge Wright was unanimously affirmed by the Appellate Term for the 2nd and 11th Judicial Districts in No. 2002-1324 K C, decided July 18, 2003 [exhibit H of motion].

In another plenary action, Index No. 46678/02, Mr. Jackson again alleged "loss of property," by the failure of Deer Park to repair the lock to his apartment. This case was tried before me, when I served as a Judge of the Civil Court, Kings County. In my decision and order of September 15, 2003 [exhibit I of motion], I dismissed the case pursuant to CPLR 4401 for "failure of plaintiff to make a prima facie case." I also granted defendant a judgment of $6,983, plus interest from February 1, 2002, on two of its counterclaims.

Defendant's instant motion for summary judgment and dismissal of plaintiff's action relies [*4]upon the related legal principles of res judicata and collateral estoppel, which prevent our courts from wasting limited resources by the continued relitigation of claims and issues. Professor David Siegel, in NY Prac §442, at 747 [4th ed], makes it clear that:

The doctrine of res judicata is designed to put an end to a matter

once duly decided. It forbids relitigation of the matter as an unjustifiable

duplication, an unwarranted burden on the courts as well as on opposing

parties. Its main predicate is that the party against whom it is being invoked

has already had a day in court, and, if it was not satisfactory, the proper course

was to appeal the unsatisfactory result rather than ignore it and attempt its

relitigation in a separate action.

Res judicata is also known as "claims preclusion. " Judge Cardozo, for a unanimous Court of Appeals, in Schuylkill Fuel Corp. v B & C Nieberg Realry Corp., 250 NY 304, 306-307 (1929) instructed that "[a] judgment in one action is conclusive in a later one not only as to any matters actually litigated therein, but also as to any that might have been so litigated, when the two causes of action have such a measure of identity that a different judgment in the second would destroy or impair rights or interests established by the first . . ." In O'Brien v City of Syracuse, 54 NY2d 353, 357 (1981), Chief Judge Cooke, also for a unanimous Court of Appeals, noted 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 based upon different theories or if seeking a different remedy . . ." See Yerg v Board of Educ. of Nyack Union Free School District, 141 AD2d 537 (2d Dept 1988); Coliseum Towers Associates v County of Nassau, 217 AD2d 387 (2d Dept 1996).

Collateral estoppel or "issue preclusion," as observed by Prof. Siegel, in NY Prac §443, at 748-749, [4th ed], "scans the first action and takes note of each issue decided in it. Then if the second action, although based on a different cause of action, attempts to reintroduce the same issue, collateral estoppel intervenes to preclude its relitigation and to bind the party, against whom the doctrine is being invoked, to the way the issue was decided in the first action." In Ryan v New York Telephone Company, 62 NY2d 494, 500 (1984), the Court of Appeals, held that "[t]he doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same." Two prerequisites must be met before collateral estoppel can be raised. The Court of Appeals, in Buechel v Bain, 97 NY2d 295 (2001), cert denied 535 US 1096 (2002), instructed at 303-304, that:

There must be an identity of issue which has necessarily been decided

in the prior action and is decisive of the present action, and there must

have been a full and fair opportunity to contest the decision now said to

be controlling (see, Gilberg v Barnieri, 53 NY2d 285, 291 [1981]). The

litigant seeking the benefit of collateral estoppel must demonstrate that the

decisive issue was necessarily decided in the prior action against a party,

or one in privity with a party (see, id.). The party to be precluded from [*5]

relitigating the issue bears the burden of demonstrating the absence of a

full and fair opportunity to contest the prior determination.

See Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 485 (1979); D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664; Davidson v American Bio Medica Corp., 299 AD2d 390 (2d Dept 2002); Luscher v Luscher, __ AD3d ___, 2005 NY Slip Op 06782 (2d Dept 2005).

It is clear from the numerous actions brought by Mr. Jackson in Civil Court, Kings County, that the instant action is a further attempt by him to relitigate claims and issues that have been resolved or relitigated in four prior Civil Court actions. Judge Wright's resolution of the claims and issues raised in the instant action, in L & T Index # 107500/01 on January 22, 2002, is a judgment on the merits. It is a waste of judicial resources to continue to retry Mr. Jackson's claims and issues. The resolution of Mr. Jackson's claims in prior proceedings are res judicata. Recently, in September 2005, the Court held in Luscher v Luscher, supra:

[u]nder the doctrine of res judicata, 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 involving the

parties to a litigation and those in privity with them (see Gramatan Home

Investors Corp. v Lopez, 46 NY2d 481, 485).

Collateral estoppel, as well as res judicata, bars Mr. Jackson from going forward with the instant action. In Gramatan, id, at 485, the Court instructed that:

This principle, so necessary to conserve judicial resources by discouraging

redundant litigation, is grounded on the premise that once a person has been

afforded a full and fair opportunity to litigate a particular issue, that person

may not be permitted to do so again (B. R. De Witt, Inc. v. Hall, 19 NY2d

141, 144; Good Health Dairy Prods. Corp. v. Emery, 275 NY 14, 18).

Mr. Jackson had his day in court with "a full and fair opportunity to litigate the issue in the prior proceeding." The Appellate Division, Second Department, held, in Sucher v Kutscher's County Club, 113 AD2d 928, 929 (1985), that:

[t]he doctrine of collateral estoppel applies to preclude relitigation of an

issue where it is found that (1) the issue sought to be precluded is identical

to one which was necessarily decided in a prior proceeding, and (2) the

litigant against whom preclusion is sought in the present proceeding had a full and fair opportunity to litigate the issue in the prior proceeding . . .

[Emphasis added]

A further reason to dismiss the instant action is the absolute privilege given to statements made in the course of judicial proceedings, and plaintiff's failure to set forth the contents of the alleged defamatory statements. In Martirano v Frost, 25 NY2d 505, 508 (1969), the Court held that:

[n]othing that is said in the court room may be the subject of an action for

defamation unless, this court has declared, it is "so obviously impertinent

as not to admit of discussion, and so needlessly defamatory as to warrant

the inference of express malice." (Youmans v. Smith, 153 NY 214; see [*6]

People ex rel. Bensky v. Warden, 258 NY 55, 59). In other words, the

statement must be so outrageously out of context as to permit one to

conclude, from the mere fact that the statement was uttered, that it was

motivated by no other desire than to defame.

In the instant action, even assuming that the statements of defendant's employees are binding upon defendant corporation as principal, testimony given in the prior Civil Court case is absolutely privileged. The January 22, 2002 testimony cannot form the basis for Mr. Jackson's action, especially when such prior testimony had to found relevant and credible by Judge Wright, who decided for defendant, and ordered Mr. Jackson's eviction from the 330 Lewis Avenue apartment. See Dachowitz v Kranis, 61 AD2d 783 (2d Dept 1978); Wekstein v Romm, 87 AD2d 867 (2d Dept 1982); Fabrizio v Spencer, 248 AD2d 351 (2d Dept 1998); Ulrich v Hausfeld, 269 AD2d 526 (2d Dept 2000).

CPLR 3016 (a) states that "[i]n an action for libel or slander, the particular words complained of shall be set forth in the complaint, but their application to the plaintiff may be stated generally." In Gardner v Alexander Rent-A-Car, Inc., 28 AD2d 667 (1st Dept 1967), the Court held that the exact defamatory language used by defendants must be specified as per the statute, stating that, "[t]his requirement is strictly enforced and the exact words must be set forth. Any qualification in the pleading thereof by use of the words 'to the effect', 'substantially', or words of similar import generally renders the complaint defective." See Erlitz v Segal, Liling & Erlitz, 142 AD2d 710 (2d Dept 1988); Williams v Varig Brazilian Airlines, 169 AD2d 434 (2d Dept 1991); Bell v Slepakoff, 224 AD2d 567 (2d Dept 1996); Trachtman v Empire Blue Cross and Blue Shield, 251 AD2d 322 (2d Dept 1998); Hernandez v New York City Law Dept. Corp. Counsel, 258 AD2d 390 (1st Dept 1999). It is impossible from reading plaintiff's verified summons with notice to determine specifically what defendant's witnesses are alleged to have said that is defamatory, on January 22, 2002, in the trial of L & T Index No. 107500/01.

Defendant Deer Park has made a prima facie showing of entitlement to judgment as a matter of law. The burden now shifts to plaintiff to refute this. Mr. Jackson's opposition papers do not meet this burden. Overlooking that Mr. Jackson's opposition papers are not in an affidavit and should be inadmissible, Mr. Jackson uses his opposition papers to attack various specific statements made by the witnesses and defendant's counsel. Mr. Jackson claims that this is new evidence and that he should be allowed to retry the case. However, this is not identified as a motion for leave to renew or reargue, as required by CPLR 2221. Mr. Jackson has had numerous days in court on his claims and issues. At the January 22, 2002 trial he had his opportunity to cross-examine the witnesses who allegedly defamed him. Judge Wright issued his decision after weighing the credibility of the witnesses. Further, Mr. Jackson had his opportunity to appeal Judge Wright's decision. Enough is enough. Plaintiff's action must be dismissed because of res judicata, collateral estoppel, and plaintiff's failure to state a cause of action, with his attempt to attack privileged testimony and noncompliance with CPLR 3016 (a).

Defendant's counterclaims against plaintiff

Defendant's answer presented seven counterclaims. Six of the counterclaims are for unpaid rent, legal fees pursuant to the lease for Mr. Jackson's former apartment at 330 Lewis [*7]Avenue, defendant's legal fees from Mr. Jackson's numerous unsuccessful lawsuits against it, and damages caused by Mr. Jackson from his unlawful trespass on April 12, 2002. This Court

will sever from the dismissed action counterclaims one to four, six, and seven for trial, giving Mr. Jackson an opportunity to defend himself on these issues.

Counterclaim five states, "[t]he Defendant herein seeks an injunction against the Plaintiff herein from commencing frivolous litigation against the Defendant, it's attorneys and it's agents." [sic] It is evident that Mr. Jackson continues to badger defendant with lawsuits that attempt to repeat the claims and issues previously adjudicated. This is plaintiff's fifth action against Deer Park since his eviction by his former landlord. All five actions, including this one, have been unsuccessful. This fifth unsuccessful action, on the same claims and issues, must be considered frivolous. 22 NYCRR 130-1.1 (b) defines frivolous conduct for purposes of costs or sanctions to be imposed against a party who engages in frivolous conduct in civil litigation as conduct that "is completely without merit in law" and "undertaken primarily to . . . harass . . . another." Due to Mr. Jackson's multiple frivolous dismissed lawsuits against Deer Park this Court will not conduct a hearing to determine if Mr. Jackson should be sanctioned pursuant to 22 NYCRR 130-1.1. Mr. Jackson's has limited financial circumstances and he faces the potential of Deer Park being awarded further judgments against him on the six remaining counterclaims. Manwani v Manwani, 286 AD2d 767 (2d Dept 2001).

Our courts have an interest in preventing the waste of judicial resources by a party who knows that his lawsuit has no legitimate basis in law or fact and continues to attempt to relitigate resolved claims and issues. Martin-Trigona v Capital Cities/ABC, Inc., 145 Misc 2d 405 (Sup Ct, New York County 1989). In Sassower v Signorelli, 99 AD2d 358 (2d Dept 1984), the Court noted, at 359, that "public policy mandates free access to the courts . . . and, ordinarily, the doctrine of former adjudication will serve as an adequate remedy against repetitious suits." The Sassower Court then observed, in the next paragraph, that:

Nonetheless, a litigious plaintiff pressing a frivolous claim can be extremely

costly to the defendant and can waste an inordinate amount of court time,

time that this court and the trial courts can ill afford to lose (see Harrelson v

United States, 613 F2d 114). Thus, when, as here, a litigant is abusing the

judicial process by hagriding individuals solely out of ill will or spite, equity

may enjoin such vexatious litigation . . .

Further, pro se litigants, who abuse judicial process have had their access to the courts limited. In Spremo v Babchik, 155 Misc 2d 796 (Sup Ct, Queen County 1996), the Court, in enjoining a pro se litigant from instituting any further actions and proceedings in any court in the New York State Unified Court System, cited Sassower and Kane v City of New York, 468 F Supp 586 (US Dist Ct, SD New York 1979), affd 614 F2d 1288 (2d Cir 1979). The Kane Court, at 592, held:

The fact that one appears pro se is not a license to abuse the process of

the Court and to use it without restraint as a weapon of harassment and

libelous bombardment. The injunction herein ordered is fully warranted

to put an end to such activity . . . Commencement of action upon action [*8]

based on the same facts dressed in different garb, after thrice being rejected

on the merits and having been repeatedly warned that the claims were barred

by res judicata, can only be explained as malicious conduct.

In Muka v New York State Bar Association, 120 Misc 897 (Sup Ct, Tompkins County 1983), in which a pro se plaintiff brought a fourth unsuccessful lawsuit against the State Bar Association upon various conspiracy theories, the Court not only dismissed the action for res judicata, but observed that "all litigants have a right to impartial and considered justice. Insofar as any litigant unnecessarily consumes inordinate amounts of judicial time and energy, he or she deprives other litigants of their proper share of these resources. A balance must be kept."

Therefore, Mr. Jackson with his history of abusing the civil justice system by bringing continued actions devoid of merit against the same defendant, Deer Park, must be precluded from relitigating the same claims and issues, with its waste of court resources. With respect to defendant's fifth counterclaim for injunctive relief to prevent Mr. Jackson "from commencing frivolous litigation against the Defendant, it's attorneys and it's agents," [sic] Mr. Jackson is enjoined from bringing any future actions in the New York State Unified Court System against Deer Park Ventures, its agents, and its attorneys, without the prior approval of the appropriate Administrative Justice or Judge. See Shreve v Shreve, 229 AD2d 1005 (2d Dept 1996); Braten v Finkelstein, 235 AD2d 513 (2d Dept 1997); Duffy v Holt-Harris, 260 AD2d 595 (2d Dept 1999); Mancini v Mancini, 269 AD2d 366 (2d Dept 2000); Cangro v Cangro, 288 AD2d 417 (2d Dept 2001).

Conclusion

Accordingly, it is,

ORDERED, that defendant's motion for summary judgment and dismissal of plaintiff's complaint, pursuant to CPLR 3211 (a) (5) and CPLR 3212, upon the grounds of res judicata, collateral estoppel, and plaintiff's failure to state a cause of action is granted. The instant action by plaintiff is dismissed, and it is further

ORDERED, that defendant's first to fourth, sixth and seventh counterclaims are severed for trial. Plaintiff and defendant are directed to appear for trial on these counterclaims for unpaid rent, attorneys' fees, damages to defendant's property, and damages resulting from plaintiff's frivolous lawsuits, before myself, at the Supreme Court, Part 27, Room 479, 360 Adams Street on Tuesday, November 22, 2005 at 2:30 P.M., and it is further

ORDERED, that defendant's fifth counterclaim for injunctive relief to prevent Mr. Jackson "from commencing frivolous litigation against the Defendant, it's attorneys and it's agents," [sic] is granted. Mr. Jackson is hereby enjoined and ordered from bringing any future actions in the New York State Unified Court System against Deer Park Ventures, its agents, and its attorneys, without the prior approval of the appropriate Administrative Justice or Judge. Any violation of this order may subject Mr. Jackson to costs, sanctions and contempt proceedings.

This constitutes the Decision and Order of the Court. [*9]

HON. ARTHUR M. SCHACK

J. S. C.