Davey v Costello

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Davey v Costello 2013 NY Slip Op 30591(U) March 26, 2013 Supreme Court, New York County Docket Number: 602139/05 Judge: Debra A. James Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. lNED ON 312712013 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: PART 59 DEBRA A. JAMES Justice PETER F. DAVEY, Index No.: Plaintiff, BRIAN COSTELLO, -- - v _ .. __^__ ..-* . " 602139/05 Motion Date: --. 10/26/12 Motion Seq. No.: MAR 27 2013 1 1 NEW YORK 03 3 Motion Cal. No.: i The following papers, n u m b m m m m o t i o n for summary judgment . , PAPERS NUMBERED Notice of MotiodOrder to Show Cause -Affidavits -Exhibits Answering Affidavits - Exhibits 3, 4 Replying Affidavits - Exhibits Cross-Motion: Yes 5 No Defendant BRIAN COSTELLO (Costello) moves, pursuant to CPLR 3211 ( a ) ( 1 ) and (a) ( 5 ) , and 3212 to dismiss the complaint as against it. Defendant alternatively moves to dismiss all claims because plaintiff did not obtain Court permission p r i o r to filing a new case. The court s h a l l g r a n t such motion. P l a i n t i f f p r o se argues that t h e court should deny defendant Costello's motion for summary disposition o f this action as it is untimely pursuant to CPLR 3212 (a). In Rossi v A r n o t Osden Med C t r , 252 AD2d 778, 780 (3d Dept 1 9 9 8 ) , Justice Graffeo f o r a unanimous Second Department wrote, in pertinent p a r t : Supreme C o u r t also did n o t abuse its discretion in allowing Chiota to serve a late motion for summary 181 FINAL DISPOSITION Check if appropriate: 0 DO NOT POST Check One: NON-FINAL DISPOSITION REFERENCE [* 2] plaintiff, a pro se attorney, against his former wife and Kelly & Knaplund, counsel for his former wife in the divorce action. This court sua sponte judicially notices that the court records show that plaintiff filed his Note of Issue on February 27, 2009. I The court records show that the Certificate of Readiness for Trial portion of plaintiff's Note of Issue states, I in pertinent part, "The case is not ready for trial subject to open discovery". at the time, Justice Braun, to whom the action was assigned ~ u sponte a struck the matter from the trial calendar, though he apparently d i d not vacate the note of issue even though there i s some authority supporting his power to do s o in light of plaintiff's Certificate of Readiness that stated that the case was not ready for trial. See Rossi, s u p r a , at 780. Plaintiff is correct that the Note of Issue was never vacated and that the defendant Costello filed h i s motion for summary judgment on September 12, 2011, well beyond the 120 day limitation set forth in CPLR 3 2 1 2 ( a ) . However, a further review of the history of this action establishes that defendant Costello has shown good cause for the delay. Entries in the court record establish that Kiernan J. Sullivan, Esq., defendant Costello's original attorney died on March 4, 2010. of Wrobell & Just one month later, on April 10, 2010, the firm Schatz, LLP appeared on defendant Costello's behalf and served and filed a Notice of Appearance. -3- A month after, that [* 3] firm served and filed a "motion in limine" memorandum of law, whiAe the action was still before Justice Braun. Then on September 12, 2011, one month prior the time that Justice Braun's r e c u s e d himself, Wrobell & Schatz, defendant Costello's substituted firm, served and f i l e d a motion for summary judgment. The death of defendant Costellofs attorney, which occurred approximately eight months after the deadline for filing dispositive motions under CPLR 3 2 1 2 ( a ) c o u p l e d w i t h a prior o r d e r of Judge Madden, outlined below, which permanently enjoined 1320 p l a i n t i f f Davey from commencing any further actions related to his 2004 divorce in this court without p r i o r permission, establishes good cause. In fact, in this v e r y action, Justice Braun granted the motions of defendants former wife and h e r former lawyers, who were co-defendants of d e f e n d a n t Costello, finding that plaintiff's claims were barred by res judicata based on two previous actions, one before Justice Diamond Index No. 112002/01, Motion Seq. 01 and the other before Justice Madden Index No. 116183/2003 Motion Seq. 01.' ' J u s t i c e Braun's order Defendant Costello appends to his moving papers, copies of the decisions in such previous actions. Fro s e plaintiff Davey sought review in the C o u r t of Claims (Davev v State of New York, 2005-029-503) o f the orders dated March 6, 2003 and September 10, 2003 that he alleged were wrongfully issued by Justice Shapiro, Westchester County Supreme Court. The Court of Claims dismissed such claims upon the doctrine of judicial immunity. Such dismissal was affirmed on appeal before the Appellate Division, Second Department. Unfortunately, pro se plaintiff d i d not perfect his appeal from either the Judgment of Divorce dated J u l y 6, 2004 or the prior orders of Justice S h a p i r o , before the Appellate Division, Second Department, which would have been the proper recourse. Assuming arsuendo that the Judge Shapiro overlooked controlling precedent that held "that prior to entry of a judgment altering a l e g a l relationship between parties granting divorce, separation or annulment, courts may not direct the sale of marital property held by spouses -4- [* 4] dated September 15, 2007 granting the co-defendants' application to find plaintiff in civil contempt f o r violating a legal mandate of the court and directing plaintiff to purge the contempt by paying counsel fees and costs to co-defendants in amount of $28,309.97, was unanimously affirmed on appeal, 57 AD3d 230 (1" Dept 2008). In the action before Justice Madden, by Order dated July 12, 2004, the court found that \\as it appears that P e t e r Davey has exhausted all other viable avenues of litigation concerning this matter, he shall be required to obtain permission from the court before bringing any further litigation in this court related to this matter. " The court finds t h a t this action against defendant Costello is related to the issues that were the subject of the order issued by Justice Madden which required plaintiff to obtain permission before bringing any further litigation. Plaintiff's argument that because defendant Costello was never a part of any prior action, plaintiff was not barred by res judicata from as tenants by the entirety unless the parties have consented to the sale", (Moran v Moran, 77 AD3d 443 [ l s tDept 2 0 1 0 ] ) , plaintiff's remedy was to seek review of such orders by such intermediate appellate court, which he neglected to do. Instead, in addition to the above referenced actions, he commenced Davev v Costello, (Westchester County Supreme Court Index No. 10220/05) and Davev v Dolan, (US Courts, S D N Y , 05 Civ 5 5 1 3 ) , the latter in which Judge Holwell by order dated September 26, 2006 permanently enjoined Davey from pursuing further federal litigation that in any way relates to any matter arising out of his matrimonial dispute without first obtaining the authorization of the District Court or from pursuing any state litigation in that same category without appending the District Court's opinion and o r d e r of injunction to his first filings. -5- [* 5] commencing an action against Costello, is unpersuasive. Any finding of liability against defendant Costello, a bona fide purchaser for value, would depend upon a finding of fraudulent intent on the p a r t of defendant Kelly, defendant Costello s immediate grantor (Commandment Keepers Ethiopian Hebrew Conareqation of the Livinq God, Pillar & Ground of Truth, I n c v 31 Mount Morris Park, LLC, 76 AD3d 465 [ I s t Dept 2010]), which plaintiff cannot establish based upon the doctrine of collateral estoppel. See also Schwartz v Public Adm r of Countv of Bronx, 24 NY2d 65 (1969). E r u o , the action against defendant Costello is a related matter and the complaint against him is barred by collateral estoppel. F u r t h e r , as plaintiff has failed to obtain permission before interposing a claim against defendant Costello, his action is improper u n d e r the permanent injunction issued by Justice Madden and must be dismissed as he never sought permission from the court before commencing this action. Accordingly, it is hereby ORDERED that defendant Brian Costello s motion for summary judgment is GRANTED and the complaint is dismissed with costs and disbursements to d e f e n d a n t Costello as t a x e d by the Clerk upon the submission of an appropriate b i l l of costs; and it is further ORDERED that the Clerk is directed to enter judgment. -6- [* 6] T h i s is t h e decision a n d order of the c o u r t . Dated: March 2 6 , 2013 ENTER: FILED MAR 2 7 2013 -7- 1

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