Scomello v Firestone
Annotate this CaseDecided on May 4, 2006
Supreme Court, Suffolk County
Adeline Scomello Natural Parent, Guardian and Friend and ADELINE SCOMELLO Individually, Plaintiff,
against
Arnold B. Firestone Individually and FIRESTONE & FIRESTONE Attorneys At Law, , Defendants.
1994-23726
PLAINTIFF'S ATTORNEY
Adeline Scomello
Plaintiff Pro Se
21 Woodbine Street
Coram, New York 11727
DEFENDANT'S ATTORNEY
Arnold B. Firestone, Esq.
Defendant Pro Se
612 Veterans Memorial Highway
Hauppauge, New York 11788
Jeffrey Arlen Spinner, J.
Presently before the Court is the latest chapter in an odyssey that traces its roots to an acrimonious marriage dissolution proceeding that was commenced in the waning years of the previous century. The Defendant was but one of a number of attorneys who had occasion to represent the Plaintiff in her bitter divorce action against her former spouse. At least four of these attorneys (including the Defendant) were the target of subsequent lawsuits by the Plaintiff, all with strikingly similar claims. The Plaintiff has staunchly maintained that the Defendant did, [*2]during the course of his representation, engage, inter alia, in fraudulent conduct, negligence, legal malpractice and breach of contract, even after such claims (save for that sounding in breach of contract) were dismissed by other Justices of this Court. Nonetheless, the Plaintiff has doggedly pursued her claim against the Defendant for the preceding eighteen years, having formally filed her action at law in 1994. For more than a decade, the Plaintiff, though not an attorney at
law, has elected to represent herself, both in this and other legal proceedings. Although bereft of formal legal training, the Plaintiff nonetheless has drafted and filed a complaint with eleven coherently worded causes of action. In addition and again without the benefit of legal education, she has clearly drafted and articulately prosecuted a plethora of applications before the Court and has ably defended herself against motions filed by the Defendant. She has even gone so far as to capably participate in the selection of a jury to try her cause, which selection was supervised by the undersigned Justice due to the Plaintiff's continuing contumacy.
Subsequent to the selection and seating of the jury in this matter and prior to the commencement of the trial, the Defendant moved in limine for dismissal of the action. In support of this motion, the Defendant produced a transcript of a hearing that was held on May 10, 1989 before Hon. Joseph Colby, a Justice of the Supreme Court. Justice Colby had been assigned to preside over the matter of Adeline Scomello v. Patsy Scomello, Index no. 1986-14253 (the Plaintiff's divorce action) and the hearing was relative to the Defendant's application for withdrawal from the case as well as the determination of any fees owed to the Defendant. Both the Plaintiff and the Defendant were present at that hearing, at which time all of the Plaintiff's claims against the Defendant, except for any claims of legal malpractice, were settled and disposed. The Plaintiff was fully allocuted by Justice Colby as to her voluntariness regarding that settlement and she indicated her understanding that she would be barred from asserting, in futuro, anything more than a legal malpractice claim against the Defendant. After taking judicial notice of that proceeding in accordance with CPLR 4511, upon carefully reviewing the transcript and with the Plaintiff having conceded the accuracy thereof in open court, this Court entered an Order, on the record, dismissing the Plaintiff's action as time barred pursuant to CPLR 214(6). The minutes of the dismissal were "So Ordered" by this Court on March 8, 2006.
The Plaintiff now moves, by omnibus application, for reargument pursuant to CPLR 2221 (her precise terminology is "An Order pursuant to CPLR 2221 to Reconsider or for Leave to Reargue"), vacatur of the dismissal of her action and a written order containing findings of fact and conclusions of law. The Defendant, in response thereto, has filed a Cross-Motion which opposes the relief sought by the Plaintiff and affirmatively seeks an order prohibiting the Plaintiff from filing any further applications in this proceeding. While the Defendant's cross-motion is both brief and salient, the Plaintiff's application and reply run some 329 pages, inclusive of exhibits and together they contain much matter that is in no way relevant to her application.
Since the gravamen of the Plaintiff's application is clearly one for reargument and not renewal, as [*3]determined by language in the Affidavit in support, the Court will treat the same as a motion for reargument under CPLR 2221.
The Court has carefully reviewed and digested all of the documents in this matter including Affidavits, Affirmations and Exhibits and takes judicial notice, pursuant to CPLR 4511 of all proceedings under this index number. Again, mindful of the fact that the Plaintiff is not an attorney, the Court has elected to view all submissions in a light most favorable to the Plaintiff as well as affording her the benefit of every doubt and indeed, resolving all close questions in her favor.
Sadly, the bulk of the Plaintiff's application consists primarily of scathing invective, leveled both at the Court and at the Defendant. The Plaintiff's sworn diatribe contains a veritable plenitude of strident mis-characterizations of rulings by the Court together with scandalous, misleading and specious statements directed primarily at the Defendant. In addition, the Plaintiff persistently misquotes and misapplies both statutory law and case law to the present matter. Moreover, the Plaintiff's submissions contain repetitive and plaintive (albeit unsubstantiated) charges that she has been systematically deprived of her civil rights at the hands of both the Court and the Defendant. Indeed, the Plaintiff falsely and baselessly depicts the proceedings as collusion as between the Defendant and the Court, designed to deprive her of her day in court. In short, virtually all of the contents of the Plaintiff's submission are devoid of both legal and factual efficacy.
Turning nonetheless to the merits of the motion and cross-motion, the Court finds that the Plaintiff has failed to demonstrate any colorable reason (indeed any legitimate reason at all) for this Court to grant reargument and subsequent vacatur of the judgment of dismissal, aside from her displeasure regarding the outcome. The Plaintiff has failed to satisfy her statutory burden of demonstrating that the Court either overlooked or misapprehended issues of law or fact, CPLR 2221(d), Delvecchio v. Bayside Chrysler (etc.) Inc. 271 AD2d 636 (2nd Dept. 2000) and likewise has failed to demonstrate that the law was misapplied to the facts of the case. A motion to reargue is not a vehicle which affords a party an additional opportunity to relitigate issues that have been previously decided, Bush v. City of New York 195 Misc 2d 882 (Sup Ct. Bronx County 2003). A motion to reargue is necessarily addressed to the discretion of the trial court and may be granted only upon a showing that the court, in its earlier determination, either overlooked or misapprehended the facts or the law or arrived at its prior decision by mistake, Marini v. Lombardo 17 AD3d 545 (2nd Dept. 2005), Carillo v. PM Realty Group 16 AD3d 611 (2nd Dept. 2005). Here, the Plaintiff simply reiterates and re-emphasizes the same contentions that she has previously espoused and she has failed to make even a prima facie demonstration of any reasonable basis whatsoever for the Court to grant leave to reargue, Williams v. Board of Education of the City of New York 24 AD3d 458 (2nd Dept. 2005). The Court, therefore, declines to grant reargument and denies the Plaintiff's application in its entirety.
Turning to the Defendant's cross-motion for preclusion, a careful assessment of the history of this matter leads the Court to rule in favor of this application. As the Defendant correctly points out, the Plaintiff has enjoyed unfettered access to the Court and, since 1994, has relentlessly prosecuted her claim against the Defendant. The record also reveals that she has failed to appear [*4]before the Court upon a number of occasions and indeed that she has filed a number of written motions of highly questionable validity. This Court is mindful of New York's public policy which guarantees unfettered access to the courts, Board of Education v. Farmingdale Classroom Teachers Assn, 38 NY2d 397. However, such unfettered access is not absolute but in appropriate instances, may be limited or curtailed. As the Appellate Division of the Supreme Court, Second Department stated in a scholarly per curiam opinion, "...a litigious plaintiff pressing a frivolous claim can be extremely costly to the defendant and can waste an inordinate amount of time that...trial courts can ill afford to lose..." Sassower v. Signorelli 99 AD2d 358 (2nd Dept. 1984). Indeed pro se litigants have been enjoined in the past where they have used the courts as a weapon to harass others or to press forward on frivolous claims, Kane v. City Of New York 468 F Supp 586 [SDNY 1979] aff'd 614 F 2d 1288 [2d Cir. 1979].
Under the unique circumstances presented here, limited preclusion is appropriate. The Plaintiff is henceforth prohibited from filing any motions, applications or other papers in this cause without prior written application to and review in camera by this Court together with written permission from this Court. This directive shall be effective whether the Plaintiff files pro se or through counsel. The Plaintiff is advised that any submissions made in compliance with this directive must be in good faith and that the provisions of 22 NYCRR § 130-1.1 may result in the imposition of sanctions if the same are deemed to be frivolous. This injunction shall apply only to the instant matter and shall not, in any manner, restrict the Plaintiff's access to the Appellate Division of the Supreme Court.
IT IS, THEREFORE
ORDERED that the application by the Plaintiff for reargument is hereby denied in all respects; and it is further
ORDERED that the Plaintiff's application for vacatur of the judgment and for additional findings of fact and conclusions of law is denied as academic; and it is further
ORDERED that the Plaintiff ADELINE SCOMELLO is hereby restrained, enjoined and prohibited from filing any motions, applications or other papers in this cause absent prior written application to this Court, after in camera review and upon subsequent written approval by this Court; and it is further
ORDERED that the provisions of this Order shall not affect any right of access that the Plaintiff may have to the Appellate Division of the Supreme Court; and it is further
ORDERED that any relief not expressly granted herein is hereby denied.
This shall constitute the decision, judgment and order of the Court.
Dated: May 4, 2006
Riverhead, New York [*5]
E N T E R:
______________________________________
JEFFREY ARLEN SPINNER, J.S.C.
***For purposes of publication, identifying information as to minor children, if any, has been redacted.***
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