Bank of N.Y. Mellon v Izmirligil

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Bank of N.Y. Mellon v Izmirligil 2016 NY Slip Op 32311(U) November 18, 2016 Supreme Court, Suffolk County Docket Number: 47361/2009 Judge: C. Randall Hinrichs Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER INDEX N0.47361 /2009 SUPREME COURT - STATE OF NEW YORK I.AS. PART 49 SUFFOLK COUNTY PRESENT: HON. C. RANDALL HINRICHS Justice of the Supreme Court -------~---------------------------------~------------)( BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR CHASE MORTGAGE FINANCE TRUST SERIES 2006-S2 Plaintiff, Motion Dates: 013: 7/ 11/ 16: 014: 7/26/ 16: 015: 8/11116 016: 9/19/16: 017: 9/19/16 Adjourned Date: 9/22/2016 Motion Sequence.: 013: MD: 014: MG: 015: MG 016: MD: 017: MG Eckert Seamans Cherin & Mellott, LLC By David V. Mignardi, Esq. Attorneys for Plaintiff 10 Bank Street, Suite 700, White Plains, NY I 0606 Arif S. Izmirligil. Defendant Pro Se 15 Sailors Court, Miller Place, NY 11764 Board of Managers for Sailor's Haven Homeowners Association Corp., Defendant Pro Se l 898 East River Road, RFD 2, St. James, NY 11780 -againstARIF IZMIRLIGIL, BOARD OF MANAGERS FOR SAILOR'S HAVEN HOMEOWNERS ASSOCIATION CORP., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FORE-LOAN CENTER, INC., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR PNC MORTGAGE CORP. OF AMERlCA, "JANE DOE'', Defendants. ------~----------------~-------------------------------)( MERS, as Nominee for E-Loan Center, Inc. & MERS, as Nominee for PNC Mortgage of America c/o CT Corporation System, Defendants Pro Se 111 Eight A venue, New York, NY I 0011 Eric T. Schneiderman, NYS Attorney General By Daniel S. Hallak, Esq., Assistant Attorney General Attorney for Proposed Third-Party Defendants Hon. Thomas F. Whelan & Hon. Mark D. Cohen 300 Motor Parkway, Suite 230, Hauppauge, NY 11788 Brian T. Egan, Esq., Referee 96 South Ocean A venue, Patchogue, NY 11772 Upon the reading and filing of the following papers in this matter: ( l ) Defendant/Third Party Plaintiff Dr. Arif Izrnirligil (" Defendant lzmirligil") Motion to Add Necessary Joinder of Third-Party Defendant and Joinder of Trials dated June 20, 2016 (Mot Seq. 013); (2) Motion to Dismiss by Third-Party Defendant the Honorable Mark Cohen ("Defendant Justice Cohen") (including Memorandum of Law) dated June 27, 2016, (Mot. Seq. 014); (3) Affinnation in Opposition by the plaintiff Bank of New York Mellon FKA The Bank of New York, As Trustee for Chase Mortgage Finance Trust Series 2006-2 ("Plaintiff BONY"), dated July 1, 2016, and supporting papers; (4) Affinnation in Opposition and Motion for Filing Injunction by the Defendant Justice Cohen dated August 2, 2016, and supporting papers (015); (5) Defendant Jzmirligil sur-reply in the form ofaffidavits in opposition to PlaintiffBONY and Defendant Justice Cohen both dated July 15, 2016 and (6) Defendant lzmirligil Motion to Disqualify and Sanction Defendant Judges and Their Attorneys dated August 26, 2016 and sur-reply dated September 20, 2016 (Mot. Seq. 016); (7) Defendant Justice Cohen Affirrnation in Opposition to Motion to Disqualify and Sanction dated September 6, 2016; and (8) Notice of Motion by the Plaintiff BONY to impose Filing Injunction dated September 22, 2016 (Mot. Seq. 017); it is [* 2] lzmirligil v Baum. Cl al. Page -"- Index o. 47361-2009 ORDERED that motion o f Defendant lzmirligil to add Defendant Justice ( 'ohen as a lhird-party defon<lant and motion for necessary joinder of trials is dismissed (013); and it is further ORDERED that cross-motion or Defendant Justice Cohen and Pl aintiff BONY to dismiss both the third-party complaint and motion for joinder is granted (014) ; and it is further ORDERED that motion by Defendant lzmirligil to sanction and disqualify Defendant Justice Cohen and hi s attorney is denied (016); and it is further ORDERED that motions of Plaintiff BONY and Defendant Justice Cohen to enjoin the Defendant Izmirl igil from initiating any further actions and proceedings in any court in the Unified Court Systern in the State of New York without prior judicial approval is granted (()15 and 017). The Foreclosure Action On November 30, 2009. the Plainti IT BONY commenced a foreclosure action against Defondant Izmirligil alleging failure to make installment payments on a mortgaged property located at 15 Sailors Court. MiJJcr Place. New York 11764 (""Mortgaged Prope11/') (hereinafter referred to as tht: "'Foreclosure Action .. ). Defendant lzmirligil failed to answer the complaint within twenty days required pursuant to CPI .R § 320(a) and defaulted. lzmirJigil then moved for leave to serve a late answer that was denied by order of Justice Thomas F. Whelan on July 16, 2010. Shortly thereafter. Defendant lzmirligil moved to renew and rcargut:. The motion to renew and rcargue was denied by order of Justice Whelan on September 22, 2010. Defendant lzrnirligil appealed both the July 16. 20 10 and September 22. 2010 orders. Both orders wcre affimwd by the J\ppd late Division, Second Department on October 25. 2011 . Plaintiff BONY then. sought a declaration that the affirmation required by Administrative Order 431/1 I is uncon stitutional and further sought leave to proceed without filing same. Justice Whelan granted Plaintiff BONY's motion in an order dated January 28, 2014 In a motion returnable April 22, 2014, Defendant 11'.mirligi l moved for recusal of Justice Whelan and to stay this Foreclosure Action until such time as another Supreme Court Justice is assigned to preside over said action or. in the alternative. a change of venue from the Suffolk County Supreme Court to the Kings County Supreme Court. .Justice Whelan dt:nied Defendant lzmirligil's motion by order dated May 20, 20 14. Defendant Izmirligil filed a Notice of Appeal of both theJanuary28, 2014 an<l the May'.20, 2014 orders issut:d by Judge Whelan. Oral arguments on the appeal have been held although an Appellate Division decision was not available at the time of this decision. On May 29. 2014. Defendant Jzmirligil brought suit against Justice Whelan in the Unites States District Court. Eastern District of New York. The lawsuit was di smissed with prejudice by order of the Honorable Sandra J. Feuerstein. U.S.D.J. dated March 27, 2015. That same day. Defendant lzmirligil moved for reconsideration of the federal matter. The motion to reconsider was denied in all rt:spccts save the rt:quest to correct the caption from ..Azir'' Izmirligil to "Arif' lzmirligil [* 3] l7mirligil v Baum. et al. Pag1: -3- Index No. 4 7361 -2009 On January 26. 20 I 5, Plaintiff 130NY moved for an order. to enter a default judgmt::nt against Defendant lzmirligil and all other defaulting defendants pursuant to C'PLR § 32 I 5(a) and appoint a referee to ascertain and compute the amount due on the mortgag<.: pursuant to RPAPL § I 321. In response. and while still in default, Defendant f7mirligil filed a mot on to dismiss the Foreclosure J\ction pursuant to CPLR § 321 S(c) for failure to timely prosecute: cancel the successive Notice of Pendency pursuant to C'PLR § 65 l 4(b); and also filed a second motion forthc recusal of Justice Whelan and a stay of the Foreclosure Action until such time as another Supreme Court Justice is assigned to preside over said action or, in the alternative, a change ofvenue from the Suffolk County Supreme Court to the Kings County Supreme Court. Justice Whelan denied the second motion for recusal and the motion to dismiss. and granted the motion for reference by order dated March 26. 2015. Defendant lzmirligil then filed a Notice of Appeal of the March 26, 2015 order. A decision is pending. The RICO Action On Novc::mber 20, 2015. Defendant Izmirligil initiated a civil Racketeering Jnfluenced and Corrupt Organizations (.. RICO") cause of action against the Plaintiff BONY. Steven 13aum Esq. and others alleging forgery, fraud and deception associated with the mortgage, title and f()rcclosurc on the Mortgaged Property under Suffolk County Index Number 612313/2015 (herein after referred to as the "RJCO Action·'). On or about February 2. 2016. Defondant lzmirligil filed a .. First /\mended Verified Complaint" to include Justice Whelan as a defendant in the RrCO Action. Repetitive Requests for Relief On or about February 26, 2016. Defendant lzmirligil filed a third motion seeking recusal of Justice Whelan and a stay of the Foreclosure Action until such time as another Supreme Court Justice is assigned to preside over said action or. in the alternative. a change of venue from the Suffolk County Supreme Court to the Kings County Supreme Court. L3cforc a decision could be issued on the third recusa1 motion. Defendant lzmirligil sought the j<)inder of Justice Whelan as a third-party defendant to the instant Foreclosure J\ction, seven (7) years after the initial complaint. Defendant lzmirligil also sought joinder of the foreclosure and RJCO Actions. J usticc Whelan rec used himself from both the instant forecl osure and the RICO Actions. This Foreclosure Action and the RICO Action were then assigned to the I lonorable Mark D. Cohen. Court of Claims Judge and Acting Supreme Cou11 Justice. On April 18. 2016. Defendant lzmirligil filled an Order to Sbow Cause in the RICO Action requesti ng Justice Cohen recuse himself in both the RICO and Foreclosure Actions. On May 25. 2016, J usticc Cohen issued a decision in response to the order to show cause in the RICO Action. wherein Justice Cohen denied Defendant Izmirligil's Order to Show Cause to recuse himself from presiding over hoth instant Foreclosure and RICO Actions following a non-binding May 6, 2016 opinion of the Advisory Committee:: on Judicial Ethics. [* 4] 11.mirligil v 13aum, et al. Page -4- Index No. 47361-2009 On May 26, 2016, Justice Cohen issued a decision on Defendant Jzmirl igi I's February 26, 2016 Order to Show Cause in this Foreclosure Action in which he declared the branch of the motion seeking recusal ofJudge Whelan moot; denied the defendant's request for joinder of the instant Foreclosure and RICO Actions; denied the request for change of venue; and denied the motion lo add Justice Whelan as a necessary party. By Order to Show Cause dated June 3, 2016, Defendant TZMIRLIGTL filed yet a fourth motion to request change or venue and to stay the Foreclosure Action. By decision dated June 17, 2016, Justice Cohen denied the fourth application. Defendant lzmirligil's Actions Against Justice Cohen Following Justice Cohen's the denial of his motions, Defendant Izmirligil tiled a third-party summons and complaint seeking to add Justice Cohen as a third-party defendant to the Foreclosure Action. Simultaneously, he also filed a supplemental summons and complaint against Justice Cohen seeking to add him as a defendant to the RICO Action. Defendant Justice Cohen moved to dismiss both actions by motion dated June 27, 2016. 'fhc motions sct:king to add Justice Cohen to the Foreclosure and RJCO Actions were reassigned to this court while Justice Cohen retained the cases for all olher purposes. Defendant Justice Cohen and Plaintiff BONY opposed and cro~s-moved to dismiss Defendant's lzmirligil's addition ofJudge Cohen to the Foreclosure Action. Both parties also seek a fil ing injunction to prevent Defendant Tzmirligil"s further abuse of lhe court system ir the instant Foreclosure and the RICO Action. On August 8. 2016, Defendant lzmirl igil"s attorney withdrew his representation and Defendant lzmirligil proceeded pro sc in the Foreclosure and RICO Actions. In response to the Plaintiff BO Y and Defendant Justice Cohen's Cross-Motion for a Filing Injunction. Defendant lzmirligil filed a motion, pro se, to disqualify Defendant Justice Cohen and sanction him and his counsel. Subsequent to the assignment of the immediate motions to this court and in keeping with Defendant lzmirligirs practice, Defendant lzmirligil filed a motion to add this court as a third-party defendant to both the Foreclosure Action and the RICO Action. The following is a decision on the motion to add Defendant Justice Cohen as a party a to this Foreclosure Action. the associated cross-motions to dismiss. and motions for sanctions by all parties. Recusal Before deciding the substance of the motions currently pending. this court must first address its ability its ability to decide the motions in a fair and impartial manner. [* 5] lzmirli!!il v Baum. ct al. Paoe -5- ln<.ll!x No. 47361-2009 Rccusal. as a matter of due process, is required only where there exists a direct. personal, substantial or pecuniary interest in reaching a particular conclusion or where a clash in judicial roles is seen to exist" (People v. Alomar, 93 N.Y.1d 239. 246[citations omitted]; Maller ofStampfler v. ,\'now. 190 A.D.1d 595. 596; People v. Grier. 273 A.D.2d 403. 405; Khan v. Do/Iv. 39 A.D.3d 649. 650- 5 l l2007l). This court has no direct personal or pecuniary interest in reaching a decision regarding the joindcr of Defendant Justice Cohen to this foreclosure or the civil RICO Action. Thus, recusal is not mandated . ..Absent a legaJ disqualification under .Judiciary Law § 14, a I'rial J udgc is the sole arbiter of recusal.'. (People v. Moreno, 70 N. Y.2d 403. 40511987]) ...Even in circumstances where recusal is not mandated, however, a trial judge nonetheless must take steps to ensure that his or her conduct docs not create even the appearance of impropriety." (Stamnfler, supra at 596). Jn an over abundance of caution, this court sua spontc addresses recusal in light of Defendant Izmirligil'!> unrelated and undecided motion to enjoin it as a third-party defendant. "/\judge is not disqualified merely because a litigant sues or threatens to sue him .. (United States v. Grismore. 564 F.2d 929. 933, I 0th Cir.1977. cert. denied. 435 U.S. 954). In fact, "[aj judge has an obligation not to recuse himself ... even if sued in connection with his ... duties, unless he ... is unable to serve with complete impartiality, in fact or appearance. (Swemo v. Bahchik, 155 M isc. 2d 796, 799 jSup. Ct. !992j. afrd as modified. 216 A.D.2d 382. 628 N.Y.S.2d 167 LJ995Jlcmphasis added]). "A litigant cannot be allowed to create a sham controversy by suing a judge without justification. and to then use that sham as a means for achieving the judge's recusal." (Id.). Defendant Izmirligil has begun litigation against every jurist who has attempted to hear this matter to-date and cannot hope to frustrate justice and eliminate jurists by pursuit of such a strategy. Defondant Izmirligil has sued .Judgt.: Whelan in Federal Court and attempted to add him as a third party defendant to this foreclosure and subsequent R lCO Action. Defendant Izmirligi I has also initiated claims against Defendant J usticc Cohen once Justice Cohen began presiding over this cases. It is no surprise tbat the De fondant now seeks to add this court following the assignment of the instant motions to it. Thi~ court remains without bias and completely impartial regarding the original motion to add Justice Cohen as a third-party dcfcndanl, subsequent cross motions seeking dismissal and other various relief. Accordingly, there is no cause for this court to recuse itself. .lusticc Cohen as a Third Partv Defendant Where 01c defendant is in default, and concedes liability, as is the case in the instant mater. motions effocling liability have no sway. (See, Rokina Opt. Co. v. Camera King. 63 N.Y.2d 728. 730 [ 19841: U.S. Natl Ass'n v. Gon::alez, 99 A.D.3d 694. 694-695 (2d Dcp.t 20121). Despite his efforts. Defendant 11.MIRLIGIL has been unsuccessful in vacating his default. Defendants in default have forfeited his rights to participate in the proceedings. except to contest damages. (Woodwm v. Mendon /,easing Corp.. 100 N. Y.1d 62, 71 l2003 I) Thi s preclusion includes impleading additional defendants in matters not related to damages. (See, Rokina Opt. Co v. Camera King, 63 N.Y.2d 728.130 [19841) Fu11hcnnore. Defendant lzmirligil has failed to establish that the Judge Cohen is a necessary party under to C'PLR § 100 I. There is no showing that Judge Cohen is necessary or·· indispensable to [* 6] l7n1irligil v Baum, ct al. Page -6- Index No. 47361-2009 the case in the sense that the action cannot fairly proceed without lbim f' or that his presence in the litigation is required to alTord complete relief between the parties. (.VC Venture I. LP. v. ( 'omplete Analvsis. Inc.. 22 A.D.Jd 540 (20051). ··RPAPL J311 sets forth t.he necessary dcfendanL<:; in a mortgage foreclosure action. ·codifies the equitable principle that persons holding title to the premises or acquiring any right to or lien on the property should be made defendants.'" (Id. a l 5../2). Defendant lzmirligil docs not make any allegation or provide documentation that J ustiee Cohen has any interest in the Mortgaged Property or that Justice Cohen holds title to, rights in or liens against the mortgage or Mortgaged Property. Accordingly. Defendant Izmirligil's motion to join Judge Cohen is dismissed. Sanctions a2ainst .Justice Cohen and his Counsel Defendant Izmmirgil' s request for disqualification and sanctions against DefendantJustice Cohen and his attorney is without merit and is therefore denied. Joindcr of Trial The doctrine oflaw o[lhe case precludes the re-litigation ofjud icial determinations made in the course of a single litigation. (People v. Rvans, 94 N. Y.2d 499.502 [20001). The doctrine is deigned to limit re-litigation of issues where parties had a ··fuIJ and fair'' opportunity to litigate the initial determination. (Id). Joinder has been fully adjudicated and was decided by order of Justice Cohen on May 26. 2016. Re-litigation of this issue is harred by the law of the case doctrine. Defendant Jzmirligil's request for joindcr is not properly before this court. Defendant lzmirligil's request for joinder is therefore denied. Filine Injunction The motion of the Plaintiff BONY and Defendant Justice Cohen for a llling injunction are granted to the extent spec ified herein. "[/\JI though puhlic policy generally mandates free access to the courts, courts have imposed injunctions barring parties from commencing any further litigation where those parties have engaged in continuous and vexatious litigation.'' (Roher/''- ()'Meara. 28 J\.D.3d 56 7. 568. 120061 [internal citations omitted I).Though rare, when circumstances warrant it. the Court can order injunctive relief "to forestall further vexatious litigation or to prevent use of the judicial system as a vehicle for harassment, ill will and spite." (Miller v. Lan:isera, 273. J\D2d 866, 869 14th Dep't 2000[ finternal citations and quotations omitted]) Defendant lzmirligil's meritless motions and collateral attacks go well beyond that of a zealous advocate. Defendant Izmir! igil's repetitious motions seek to re-litigate identical issues previously addressed and dismissed by the court. He requests motions to rcargue and when they arc denied. he then initiates new litigation alleging fraud and forgery by the court, the plaintiff. and their counsel. l le has initiated litigation against every Suffolk County jurist who has presided over his ca-;e. Defendant Izmirligil has also sought sanctions against his opponents counsel. 'l11C court notes that the Defendant Izmirligil unsuccessfully sued Justice Whelan under 42 U.S.C. § 1983 in the Eastt!rn District of New York alleging equal protection violations. corruption and conspiracy. The matter was dismissed and bis [* 7] lzmirlioil v Baum. ct al. Paoe -7- Index No. 4 7361-1009 motion for reconsideration denied. He then unsucccssfully moved to irnplead Justice Whelan in the Supreme Court of the State of New York. 10th Judicial District, in this Foreclosure Action and the R ICO Action. Those actions were dismissed against Justice Whelan. Interspersed with Defendant lzmirligil 's implea<lcr motions arc duplicative motions for recusal and change of venue. He then filed the immediate m otion to add Justice Cohen as a third-pru1y defendant claiming fraud, forgery and collusion as a way lo collaterally attack those prior orders. Defendant lzmirligi I's collateral attacks. repetitious motions and serial motions to impleadjurists have only served to delay adjudication of the underlying Foreclosure Ac..:tion. Defendant Izmirligil has used his motions as a bludgeon against the Plaintiff BONY and the court system itself. Having failed at achieving a change of venue through a legitimate motions which were denied at the trial level and in the appellate term, Defendant lzmirligil has employed a strategy ofimpkadingjudges in the I o•h Judicial District in the hope that he can ultimately bully the 101h Judicial Distric..:t and force a change of venue. Defendant lzmirligil has become no more than a paper reprobate who abuses judicial proceedings and drains judicial resources. As the defendant has clearly seen fit to abuse the legal system, it is hereby ordered that Defendant l:tJnirligil is henceforth hereby enjoined and prohibited from initiating any further actions and proceedings in any court in the Unified Court System in the State of f\ew York without prior judicial approval. This injunction includes the courts in all of the counties of this state. Any violation of this order will result in service upon Mr. Izmirligil of an order to show cau,e issued by the court for him lo show cause why he should not be adjudicated and puni shed for Crimiual Contempt pursuant to§ 750 et seq. of the Judiciary Law. This constitutes the decision and order of the court. DATED: November \ i . 2016 C. RANDALL IIJNR!Cll J.S. C. I I FINAL DISPOSITION I XI NON-FINAL DISPOSITION

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