Jordan v Yardeny

[*1] Jordan v Yardeny 2012 NY Slip Op 50701(U) Decided on April 19, 2012 Supreme Court, Queens County Agate, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 19, 2012
Supreme Court, Queens County

Steven S. Jordan, Plaintiff,

against

Yacov Yardeny, Defendant.



24838/05



For Plaintiff: Ira Meyerowitz, Esq.

232 Madison Ave, Suite 1200

New York, NY 10016

Plaintiff; PRO SE

Augustus C. Agate, J.

The following papers numbered 1 - 16 read on this motion by the defendant for leave to renew his motion to vacate the default judgment and dismissing the action for lack of personal jurisdiction; and cross motion by the plaintiff for sanctions and for an order enjoining the defendant from filing any further motions or commencing any actions concerning the claims and allegations raised herein.

Papers

Numbered

Notice of Motion - Affidavits - Exhibits ..........1 - 4

Notice of Cross Motion - Affidavits - Exhibits ....5 - 8

Replying Affirmation ..............................9 - 11

Sur-Reply Affidavits .............................. 12 - 16

Upon the foregoing papers it is ordered that this motion by defendant and cross motion by the plaintiff are decided as follows: [*2]

This action arises out of a breach of a lease agreement. The complaint alleges that plaintiff owned a residence located in Queens County, which he leased to the defendant, his father, pursuant to an agreement whereby defendant made rental payments of $2,042.00 per month. Plaintiff alleges that defendant breached the agreement by failing to pay the full amounts due from January 2000 through July 2005, when the agreement terminated.

Plaintiff commenced this action on November 18, 2005 and subsequently moved for a default judgment against the defendant. Pursuant to an order dated May 17, 2006, the court granted plaintiff's motion for a default judgment and directed that an inquest against the defendant be held. The inquest was held on June 2, 2006, and the court awarded plaintiff a judgment in the sum of $95,179.96, with interest. The judgment was entered in this court on June 7, 2006.

Thereafter, the defendant moved by Order to Show Cause to vacate the default judgment. This court denied defendant's application in an order dated September 14, 2006. The court, in its order, found that there was sufficient evidence that the defendant was personally served with the summons and complaint. The court also found that defendant failed to present sufficient evidence that he timely served an Answer on the plaintiff. The court further noted that defendant failed to present an affidavit of merit in support of the motion. Defendant subsequently moved to reargue and renew his application to vacate the default judgment. This court, in an order dated January 19, 2007, denied the application and noted its findings in its prior order. In July 2009, the defendant, now appearing pro se, again moved to vacate the default judgment against him. This court, in an order dated October 26, 2009, denied defendant's application, again noting that there was no proof of service of the Answer upon the plaintiff. The plaintiff appealed this order, and the Appellate Division, Second Department, in a Decision and Order dated May 24, 2011, affirmed this court's order.

The pro se defendant now moves once again to vacate the default judgment on the ground that there are new facts relating to the affidavit of service, apparently contending that service of process upon him was defective. Based upon the papers before it, defendant's motion is denied. [*3]

Plaintiff cross moves for sanctions against defendant and to enjoin him from filing further motions regarding the claims in this matter. Plaintiff argues that defendant has been engaging in frivolous, contumacious and litigious conduct and must be barred from bringing future application in this case. The relief sought by the plaintiff is drastic. The courts, in this state and other states, however, have granted such relief when the circumstances so warranted.

A party "may prosecute or defend a civil action in person" subject to certain exceptions such as infancy and incompetency. (CPLR 321[a]; Muka v New York State Bar Assn., 120 Misc 2d 897, 903 [1983]; see CPLR 1201.) A pro se litigant, however, acquires no greater right than any other litigant. (Roundtree v Singh, 143 AD2d 995, 996 [1988]; see CPLR 105[c].) As has often been stated, a litigant who represents himself does so at his own peril. (Banushi v Lambrakos, 305 AD2d 524, 524 [2003]; Davis v Mutual of Omaha Ins. Co., 167 AD2d 714, 716 [1990].) Moreover, "the fact that one appears pro se is not a license to abuse the process of the court..." (Kane v City of New York, 468 F Supp 586, 592 [SDNY 1979], affd 614 F2d 1288 [2d Cir 1979].)

Public policy generally mandates free and open access to the courts. (Board of Educ. Of Farmingdale Union Free School Dist. v Farmingdale Classroom Teachers Assn., 38 NY2d 397, 404 [1975].) Such right, however, is not unlimited and may be curtailed in appropriate instances. A judge "has both the duty and the power to protect the courts, citizens and opposing parties from the deleterious impact of repetitive, unfounded pro se litigation." (Muka v New York State Bar Assn., 120 Misc 2d at 903 [quoting People v Dunlap, 623 P2d 408, 410 [Colo 1981].) A litigant who repeatedly makes the same application numerous times can be extremely costly to his adversary and pose a substantial burden on the courts. Indeed, such repetitive applications force the court to expend an inordinate amount of time on one case and utilize limited judicial resources, which, in this period of budget cuts, is something the court can ill afford to do. (see Sassower v Signorelli, 99 AD2d 358, 359 [1984].) Thus, the courts have an interest in preventing the waste of judicial resources by a party who continues to re-litigate an issue that he knows has been resolved. (Breytman v Schechter, 30 Misc 3d 1219(A) [2011].) [*4]

Courts in this state have barred or restricted pro se litigants from further litigation where that party has engaged in continuous and vexatious litigation motivated by ill will, spite, and intended to harass or annoy or embarrass another. (see Scholar v Timinsky, 87 AD3d 577 [2011][affirming order enjoining pro se litigant from bringing further motions in the action without permission of the court]; Vogelgesang v Vogelgesang, 71 AD3d 1132, 1134 [2010][affirming order enjoining pro se litigant from filing further actions or motions without prior written approval]; Matter of Robert v O'Meara, 28 AD3d 567, 568 [2006][affirming order enjoining petitioner from commencing further actions or proceedings under Freedom of Information Law]; Duffy v Holt-Harris, 260 AD2d 595 [1999][affirming order enjoining pro se litigant from making further motions without prior approval]; Jackson v Deer Park Ventures, 9 Misc 3d 1123(A)[2005][enjoining pro se litigant from bringing any future actions in the New York State Unified Court System against the defendant without the prior approval of Administrative Judge]; Matter of Winters v Gould, 143 Misc 2d 44 [1989][enjoining pro se litigant from commencing any further actions or making any further motions unless represented by an attorney and without prior approval of the Administrative Judge]; see also Matter of Rappaport, 109 Misc 2d 640 [1981] [revoking litigant's right to appear pro se due to disruptive courtroom behavior]). In the above cases, the courts found that the litigant was abusing the judicial process. Courts in other states have taken similar approaches to dealing with one who abuses the judicial process. (see Zorn v Smith, 189 Vt 219, 19 A3d 112 [2011]; Eismann v Miller, 101 Idaho 692, 619 P2d 1145 [1980]; Pfeifer v Christian Science Bd. of Directors, 62 Ill App 3d 918, 379 NE2d 653 [1978].)

The record herein as well as the history recited above reveals that this is the fourth application by the defendant before this court to vacate the default judgment. Each application has been denied with an adequate explanation. The Appellate Division has also denied defendant's appeal. While this court is aware that restricting the "free access" to the courts is harsh, it is a remedy that is necessary in this case in view of the defendant's repeated filings of the same application and numerous attempts to re-litigate the same issue. Although defendant may have labeled his applications in different ways, they all sought relief from the default judgment. It is the opinion of this court that the defendant will continue to make [*5]these applications seeking similar relief unless some action is taken to enjoin him.

The court further notes that defendant commenced a separate action under Index Number 19034/2010 relating to the subject premises, and this action was dismissed by this court in an order dated November 14, 2011. The defendant has also commenced several other actions in this court, which include one against his former attorney in this matter and the attorney for the plaintiff.

Accordingly, this motion by defendant to vacate the default judgment is denied.

The cross motion by the plaintiff is granted to the extent that defendant is enjoined from filing any further motions or applications in this court in the action pending under Index Number 24838/05 without prior written application to this court and an in camera review of such motion or application by this court, together with written approval from this court.

Such directive shall remain in effect whether defendant files another motion or application pro se or through an attorney.

Date: April 19, 2012

AUGUSTUS C. AGATE, J.S.C.