Ruffalo v Iannace

[*1] Ruffalo v Iannace 2017 NY Slip Op 50296(U) Decided on March 9, 2017 Supreme Court, Westchester County Marx, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 9, 2017
Supreme Court, Westchester County

Todd Ruffalo, Jr., Plaintiff,

against

Peter A. Iannace, Defendant.



69671/2016



Todd Ruffalo, Jr.

Pro Se

David M. Mejia, Esq.

Attorney for Defendant

1225 Franklin Avenue, Suite 325

Garden City, NY 11530
Paul I. Marx, J.

The following papers numbered 1-3 were read on plaintiff's motion for an order permitting him to proceed as a poor person and for appointment of counsel in the above captioned matter:

Notice of Motion/Proposed Poor Person Order/Affidavit in Support of

No Index Number Fee And Appointing Quality Counsel of Todd Ruffalo, Jr. dated December 18, 2016 1-3

Plaintiff moves for an order permitting him to proceed as a poor person and for assignment of counsel in this action in which he claims to have been the victim of "Legal Malpractice, Breach of Fiduciary Duty, and Unethical Misconduct." The claims arise from the alleged negligent representation by defendant, an attorney, of plaintiff in connection with a traffic summons issued to plaintiff for alleged excessively tinted windows, which was heard in the Town of Greenburgh traffic court on March 2, 2016. Plaintiff alleges that defendant "Recklessly Failed to have this Bogus Equipment Citation Voided and Dismissed", "did NOT want to Challenge a Dirty Corrupt Black Racist Female Judge" and "did Nothing to Augment and he also Recklessly Failed to get this Nonsense Moved to another Jurisdiction Due to the Criminality from the Police and this Dirty Lawyer and Partime [sic] Judge". ¶¶8, 9, and 12. The papers submitted are laced with invective, insult and allegations unrelated to the application before the Court.

For the reasons set forth herein, it is ORDERED that the application to proceed as a poor person is denied without prejudice to refiling upon proper and complete papers. The application for appointment of counsel is denied.

It is FURTHER ORDERED that, plaintiff, Todd Ruffalo, Jr., is hereby enjoined from commencing any action in the Supreme Court of the State, Westchester County without the expressed, prior written consent and approval of this Court, and

It is FURTHER ORDERED that the Westchester County Clerk and the Clerk of the Westchester County Supreme Court are hereby prohibited from accepting for filing any papers or pleadings which may serve to commence a new action in which Todd Ruffalo, Jr., is a plaintiff unless those papers or pleadings are accompanied by an Order of this Court granting Todd Ruffalo, Jr. permission to commence such action.

Poor Person Relief

CPLR §1101 provides, in pertinent part:

Upon motion of any person, the court in which an action is triable . . . may grant permission to proceed as a poor person . . . The moving party shall file an affidavit setting forth the amount and sources of his or her income and listing his or her property with its value; that he or she is unable to pay the costs, fees and expenses necessary to prosecute or defend the action or to maintain or respond to the appeal; the nature of the action; sufficient facts so that the merit of the contentions can be ascertained; and whether any other person is beneficially interested in any recovery sought and, if so, whether every such person is unable to pay such costs, fees and expenses . . .

Plaintiff has failed to set forth the sources of his income or the value of his property. He simply states that he lacks the funds to engage counsel and pay the fees and that "the Plaintiffs [sic] income is $2,000.00, a Month and this Covers Utilities, Car Lease, Car Ins., Health Ins., Food, Etc." ¶ 13. "My Car is also a Lease, and Therefore I cannot borrow any Monies to Secure the Funds to Pursue this Case of Malpractice". ¶ 17. He claims that, "My Home has Fraudulent Stale Loans and invalid Liens Still Recorded against it, and are Currently Clouding Title, which I also cannot Borrow any Monies to as well to Secure the Funds to Pursue this Case of Preventable Legal Malpractice." ¶ 19. He continues, "My Home/Property I have No idea what it is Worth, which I am NOT an Appraiser and at the End of the Day I Cannot Tap any Equity, ..., to Borrow Monies to Pursue this Valid Case of Malpractice against the Deft. Due to Current [*2]Fraudulent Liens and Loans Clouding Title." ¶ 20. Finally, he states, "I do NOT own any other Property to Borrow and Secure Monies to Pursue this Valid Case of Malpractice and Misconduct against the Deft. at bar." ¶ 21.

A plain reading of section 1101makes it clear that an applicant must provide the Court with an "affidavit setting forth the amount and sources of his or her income and listing his or her property with its value ...." (emphasis added). Movant's failure to provide same requires denial of the motion.[FN1]

Plaintiff is granted leave to renew his application for poor person status upon proper papers within forty five (45) days of the date hereof. The Court notes that plaintiff did not serve a copy of this motion on defendant as the motion was made prior to defendant's appearance. Any renewed motion shall be served on not only the Westchester County Attorney, but also defense counsel as required by CPLR §2103(e).

Appointment of Counsel

In addition to seeking leave to proceed as a poor person, plaintiff states that "the Court here Must Grant and Appoint an Outside Party/Judge/Referee that does Not know the Deft. in this Case, and the Court Must also Appoint the Plaintiff an Atty, Under CPLR Section 1101(2) with Sophisticated Skills to Sit Second or First Chair to assist against the Deft. At Bar." ¶22. He states that he "Consulted with a Few New York Attys. to Pursue this Valid Case of Malpractice against the Deft., and which they All Wanted Upfront Approx. $15,000, or More to Pursue this Valid Chargeable Cognizable Case of Malpractice, Misconduct, Etc., and on the Meter No Less at around $550.00 Per Hour."[FN2] ¶ 14.

The decision to appoint counsel lies within the discretion of the Court. CPLR § 1102 (a). Upon consideration of all of the factors and circumstances of this case, the Court declines to exercise its discretion to appoint counsel to plaintiff. Consequently, the application is denied.

INJUNCTION

"Public policy mandates free access to the courts. However, when a litigant is abusing the judicial process by hagriding individuals solely out of ill will or spite, equity may enjoin such vexatious litigation. (Sassower v Signorelli, 99 AD2d 358, 359 ). Thus, [m]any courts have found it necessary to enjoin pro se litigants from commencing or continuing any further actions when it was found those litigants were abusing the judicial process. (Spremo v.Babchik, 155 Misc 2d 796, 803, mod on other grounds 216 AD2d 382, lv denied 86 NY2d 709, cert denied 516 U.S. 1161)" Shreve v Shreve, 229 AD2d 1005, 1006 [4th Dept 1996].

In Sassower, supra, the Second Department observed that " ... a litigious plaintiff pressing a frivolous claim can be extremely costly to the defendant and can waste an inordinate [*3]amount of court time, time that this court and the trial courts can ill afford to lose." Citing Harrelson v. United States, 613 F2d 114 [5th Cir. 1980]. See also Matter of Hartford Textile Corp., 681 F.2d 895, 897, cert. den. sub. nom. Shuffman v. Hartford Textile Corp.,459 U.S. 1206, 103 S. Ct. 1195, 75 L. Ed. 2d 439; Muka v. New York State Bar Assn., 120 Misc 2d 897 [Sup. Ct. Tompkins County 1983].

Significantly, in Mueller v Mueller, 61 AD3d 652 [2nd Dept 2012], the Court held that "[a]lthough public policy generally mandates free access to the courts [internal citation omitted], a party may forfeit that right if he or she abuses the judicial system by engaging in meritless litigation motivated by spite or ill will." Mueller at 652, citing Matter of Reiss v Giraldo, 77 AD3d 759 [2nd Dept 2010]; Matter of Molinari v Tuthill, 59 AD3d 722 [2nd Dept 2009].

Plaintiff, Todd Ruffalo, Jr., has commenced numerous cases in the courts of the State of New York. Many of these are meretricious on their face. These include cases filed against court personnel and sitting Justices and Acting Justices of the Supreme Court, all of whom enjoy absolute immunity from suit for performing their judicial duties. [Ruffalo, Jr. v DiBella, Westchester County Index # 50290/2015, Ruffalo Jr. v Lefkowitz, Westchester Index # 60467/2015, Ruffalo Jr. v Walker, Westchester Index # 64743/2015, Ruffalo, Jr. v Giacomo, Westchester Index # 68060/2015, Ruffalo Jr. v Garfein, Westchester Index # 6886/2015, Ruffalo Jr. v Wood, Westchester Index # 69163/2015, Ruffalo Jr. v Ruderman, Westchester Index # 70196/2015, Ruffalo Jr. v Lubell, Westchester Index # 51171/2016, Ruffalo Jr. v Everett, Westchester Index # 57200/2016, Ruffalo Jr. v Diamond, Westchester Index # 57201/2016, and Ruffalo Jr. v Thorsen. Westchester Index # 59861/2016].

In addition, Mr. Ruffalo has filed other cases of dubious merit. Among these, he filed three separate actions against an individual who once served as his attorney. Ruffalo Jr. v Ackerman, Westchester Index # 52501/2011, 59440/2011 and 50524/2014. In dismissing the last of these and imposing sanctions, Justice Charles D. Wood noted that two prior Justices had cautioned plaintiff against the use of inappropriate and vulgar language.

Specifically, Justice Wood noted that Justice J. Emmett Murphy wrote in his Decision and Order dated September 6, 2011, which dismissed plaintiff's first complaint against Mr. Ackerman in Index # 52501/2011, that "Plaintiff's entirely inappropriate use of vulgarities and profane hyperbole as well as the vexatious, rambling abuse which have been carelessly employed ... to insult and demean defendants, defense counsel, Judge Friedman and numerous others are improper." Justice Wood also noted that Justice Mary H. Smith, in a Decision and Order dated February 2, 2012, found plaintiff's complaint in the re-filed action against Mr. Ackerman to set forth "irrelevant, redundant, prejudicial, slanderous and scandalous assertions in a prolix, rambling, confusing manner which [were found] to be improper, irreverent". Although Justice Smith granted plaintiff the opportunity to re-plead, he repeated his improper behavior and, ultimately, Justice Smith dismissed the action on April 20, 2012, simultaneously warning plaintiff that future filings would result in severe sanctions.

Notwithstanding that caution, plaintiff filed yet another complaint against Mr. Ackerman under Index # 50524/2014. That action was assigned to Justice Wood, who in a Decision and Order dated December 12, 2014, not only imposed sanctions, but also enjoined plaintiff from filing any further actions against Mr. Ackerman.

Plaintiff has also sued: (1) the attorneys for a bank which commenced a foreclosure action [*4]against him [Ruffalo Jr. v Leopold, Westchester Index # 69164/2015 and 67755/2016], (2) the referee appointed by the Court in the foreclosure action [Ruffalo Jr. v Trent, Westchester Index # 67756/2016], (3) the police officer who issued him the summons for the improperly tinted windows, [Ruffalo Jr. v Brown, Westchester Index # 68738/2016], (4) the attorney who represented him in connection with the traffic summons [this action], (5) the operator of an auto repair shop where Mr. Ruffalo contends his car was damaged, [Ruffalo Jr. v Contarino, Westchester Index # 51846/2016 and 51972/2017], (6) the attorneys who represented the auto repair shop, [Ruffalo Jr. v Curcio, Westchester Index # 50290/2015], and (7) the attorneys who represented the attorneys who represented the auto shop [Ruffalo Jr. v Kanca, Westchester Index # 68061/2015].[FN3]

Invariably, in each action he files, plaintiff seeks to be relieved from paying the required filing fees by filing applications, such as the one denied herein, for poor person relief. As noted above, several of these applications have been denied by this Court because they lacked proper identification and substantiation of the source of his income to allow the Court to assess his indigence or inability to pay the fees.

Plaintiff's filings and letters routinely include inappropriate and insulting language. For example, in a letter dated February 8, 2017 directed to this Court, in a matter entitled Franzoso Contracting Inc. v Robin Ruffalo, Sr, Westchester Index # 62553/2015, various individuals were described as "dishonest", "dirty", felons, "unethical", "POS", "dirty POS", or "hacks." As to this Court, Mr. Ruffalo asserted, that: (1) the Court "Failed Your Classes on the CPLR in Law School", (2) "Your [sic] in For a Lot of Legal problems and troubles here that You created Yourself and You Should Be Disbarred for good in New York State", (3) "Your Integrity Stinks and You have Rendered Criminal Assistance to [plaintiff's counsel]" (4) "We Understand Your Dishonesty that are New Lows which is why Your [sic] off this Farce" and (5) "Your Dereliction in Duties are Duly Noted and Sua Sponte Your [sic] Looking at Legal Action of Your Own to Deal With from Todd Ruffalo, Jr." The letter cautions that "the Heat is going to get Turned up here against You, Your Duplicate Crony and Swindler Klein and his Felon Foe Franzoso."

The letter concludes with the statement:

"Finally, Your [sic] Fired From this Farce as of Wednesday 2/8/17, and this Means Your [sic] off of the invented Case Now where You have been Hostile, Indifferent, and Extremely Difficult, Not to Mention Dishonest with this Foolish Liar Klein and if You Refuse to Recuse Yourself from this Bogus Case, then We will have You Removed/Disqualified down the Pike from One of the Supervising Judges, and Not Your Duplicate Dishonest Bunkie Scheinkman, from Your Improper Judicial Misconduct, Malice, Operating in Bad Faith, Fraud, Etc."

Since defendant lacked the authority to "fire" the Court, the Court construed the letter as a request for recusal, which was denied. See Order Denying Application For Recusal dated February 10, 2017.

In addition to using improper and offensive language, it appears that Mr. Ruffalo believes that he can dictate to the Court and litigants when and how the matters will be litigated and overseen by the Court. His usual filings include statements to the effect that he is not available [*5]until after 3:30 p.m. and that depositions are not required and are a waste of time.

For example, in the Summons With Notice in this matter, plaintiff states: "Plaintiff is Kindly informing All Parties that the Plaintiff is Only Available in the Afternoon from 3:30-PM and 4:00-PM and on for Anything in this Case, etc." He continues, "Depositions can be Setup Without going into Court before an Unqualified Referee, which can be Setup by E-Mail, or by Mail. Depositions are also NOT Mandatory in All Litigation ... Depositions will in Fact in this instance be a Waste of time and Monies, which to Reiterate Depositions are NOT Mandatory in All Litigation, and the Plaintiff has the Deft. Dead to Rights for Malpractice for Mishandling a Staged and Fraudulently issued Equipment Citation..."

Simply put, enough is enough. The court system, which is already overburdened and underfunded, can scarcely spare the resources to address the repetitive, incorrect and often nonsensical filings of Mr. Ruffalo. Unless this Court acts to interdict his unrepentant and abusive filings, there will be no end to them.

Accordingly, plaintiff, Todd Ruffalo, Jr., is hereby enjoined from commencing any actions in the Supreme Court of the State of New York, County of Westchester without the expressed, prior written consent and approval of this Court.

The County Clerk of Westchester County and the Clerk of the Westchester County Supreme Court are hereby prohibited from accepting for filing any papers or pleadings which may serve to commence a new action in which Todd Ruffalo, Jr., is a plaintiff unless those papers or pleadings are accompanied by an Order of this Court granting Todd Ruffalo, Jr. permission to commence such action and unless such papers are accompanied by the requisite fees for filing.

Requests by Mr. Ruffalo for permission to file and serve a new action shall be made in writing, sworn to by plaintiff before a notary public and on the form attached hereto. It shall be accompanied by such documents as may demonstrate that there is a good faith basis for the action. Requests which include language which the Court finds to be insulting, abusive or inappropriate will be summarily denied.

Dated: March 9, 2017

Carmel, New York

HON. PAUL I. MARX, J.S.C. Footnotes

Footnote 1: Plaintiff has previously been informed of the requirements for granting poor person relief. Indeed, this Court previously denied applications by plaintiff to proceed as a poor person on these same grounds in other unrelated actions. See Chase Bank N.A. v Ruffalo, Jr., Westchester Index # 409/2009, Ruffalo Jr. v Leopold, Westchester Index # 67755/2016, Ruffalo Jr. v Trent, Westchester Index # 67756/2016 and Ruffalo, Jr. v Brown, Westchester Index # 68738/2016.

Footnote 2: In each of the cases referred to in footnote 1 above, plaintiff averred that he had consulted with counsel who required varying amounts of retainers at varying hourly rates "and on the meter no less."

Footnote 3: The list of cases set forth is not exhaustive, but illustrative.