Pettus v Mazzola

[*1] Pettus v Mazzola 2015 NY Slip Op 51841(U) Decided on December 16, 2015 Supreme Court, Bronx County Thompson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2015
Supreme Court, Bronx County

James Pettus, Plaintiffs,

against

Bryan Mazzola, Anna Mandell, Chris-Court Attorney for Hon. John Barone, Cantor, Epstein, Mazzola, Defendants.



250981/2015



Petitioner Pro Se

800 Grand Concourse

Apartment 4L-N

Bronx, NY 10451

Attorney for Respondents CEM:

Bryan J. Mazzola, Esq.

Cantor, Epstein, & Mazzola, LLP

49 West 37th Street

New York, NY 10018

Attorney for Respondent Chris-Court Attorney for Hon. John Barone

David Diamond, Esq.

Assistant Attorney General

Office of the NYS Attorney General

120 Broadway - 24th floor

New York, NY 10271
Kenneth L. Thompson Jr., J.

As a preliminary matter, in an order dated July 14, 2015, Justice Howard Sherman recused himself from deciding this petition. Justice Alison Tuitt recused herself in an order dated August 20, 2015, and then vacated the August 20, 2015 order in an order dated August 27, 2015, apparently because this petition never had been assigned to her.

Petitioner, James Pettus, (Pettus), petitions the Court for relief on the following grounds: defamation/slander, legal malpractice, fraud, deceit scheme to defraud, discrimination, conspiracy, retaliation, violation of cannon laws and racial animus. Respondent, Chris Quaranta, s/h/a Chris-The Court Attorney for Hon. John Barone, (Quaranta), moves pursuant to CPLR 3211 to dismiss the petition. Pettus moves to amend the caption to add Charlene Thompson to the caption of this complaint. Respondents, Bryan Mazzola, Anna Mandel and Cantor, Epstein & Mazzola, LLP, (collectively, CEM), move pursuant to 22 NYCRR 130-1.1, impose costs and sanctions against Pettus for filing frivolous actions and violating a court order, directing Pettus to pay CEM's attorneys' fees, costs and disbursements in the defense of the instant petition, pursuant to CPLR 3211(a) (7) dismiss the petition for failure to state a cause of action.

This proceeding arose as a result of alleged actions that occurred in an action held before Justice John Barone, which was brought by Pettus' wife. Pettus asserts he was acting as his wife's attorney in the underlying proceeding, when Quaranta had him removed from the judge's robing room during a settlement conference for his alleged disruptive behavior. Pettus was not a party to the underlying proceeding.

MOTIONS TO DISMISS

Since Pettus was not a litigant in the underlying action he lacks standing to bring this proceeding, as he had no "injury in fact" and is precluded from adjudicating his claims of injury. (Hill v. Reynolds, 187 AD2d 299, 300 [1st Dept 1992]).

Moreover, Pettus' petition fails to state a cause of action. With respect to defamation, his petition fails to state with particularity the defamatory words that were spoken. CPLR 3016. With respect to Pettus claim of legal malpractice, "no attorney-client relationship existed between these parties." Jane St. Co. v. Rosenberg & Estis, P.C., 192 AD2d 451, 451, 597 N.Y.S.2d 17 (1993).

With respect to Pettus' claims for fraud, deceit, or a scheme to defraud, "a mere recitation of the elements of fraud is insufficient to state a cause of action. (National Union Fire Ins. Co. of Pittsburgh, Pa. v Christopher Assoc., 257 AD2d 1, 9 [1999]). Furthermore, a plaintiff seeking to recover for fraud and misrepresentation is required "to set forth specific and detailed factual allegations that the defendant personally participated in, or had knowledge of any alleged fraud" (Handel v Bruder, 209 AD2d 282, 282-283 [1994])." Friedman v. Anderson, 23 AD3d 163, 166 [1st Dept 2005]).

Although tort liability may be imposed based on allegations of conspiracy which "connect nonactors, who might otherwise escape liability, with the [tortious] acts of their coconspirators" (Burns Jackson Miller Summit & Spitzer v Lindner, 88 AD2d 50, 72, affd 59 NY2d 314; see also, Noble v Creative Tech. Servs., 126 AD2d 611, 613), more than a conclusory allegation of conspiracy or common purpose is required to state a [*2]cause of action against such nonactor (Goldstein v Siegel, 19 AD2d 489, 493; see also, Reo v Shudt, 144 AD2d 793, 795; Silver v Mohasco Corp., 94 AD2d 820, 821, affd 62 NY2d 741).

Schwartz v. Soc'y of New York Hosp., 199 AD2d 129, 130, (1st Dept 1993).

With respect to petitioner's claims of a "violation of the Code of Professional Responsibility, as alleged by the plaintiff, does not, in itself, give rise to a private cause of action against an attorney or law firm (Drago v Buonagurio, 46 NY2d 778)." (Weintraub v. Phillips, Nizer, Benjamin, Krim, & Ballon, 172 AD2d 254 [1st Dept 1991]).

With respect to Pettus' claim of discrimination, racial animus and retaliation, petitioner's "failure to adequately plead discriminatory animus is similarly fatal to [his] claims of hostile work environment (see Chin v New York City Hous. Auth., 106 AD3d 443, 445 [1st Dept 2013])." Askin v. Dep't of Educ. of City of New York, 110 AD3d 621, 622 [1st Dept 2013]).

MOTION FOR SANCTIONS

CEM argues that Pettus should be sanctioned for the violation of a purported order of Justice John A. Barone, which was decided on default. However, the purported order dated June 10, 2015, directed respondents to "settle order on notice." CEM has not submitted a signed settled order, nor is this Court aware of a signed settled order. Pursuant to 22 NYCRR 202.48(b), "[f]ailure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown." (Emphasis added). There is no attempt by CEM to show good cause for its failure to settle an order, and therefore the aforementioned motion resulting in the decision of June 10, 2015, must be deemed abandoned and therefore, cannot be part of a basis in which to sanction Pettus.

However, CEM has noted five actions that Pettus has commenced since 2014 in this Courthouse. Furthermore, prior to Pettus' current flurry of litigation in Bronx Supreme Court, Pettus' has a long history in the federal courts.

He is also a frequent litigant in this Circuit, who appears on this Court's docket sheet as an appellant, movant, or petitioner in over sixty matters and in countless matters before the district courts. See, e.g., Pettus v. Brown, No. 9:06—cv—152, 2007 WL 1791220, at *2—3 (N.D.NY June 19, 2007) (collecting cases); Pettus v. Goord, No. 9:04—cv—0253 (LEK/RFT), 2006 WL 2806551, at *1 n. 1 (N.D.N.Y Sept. 28, 2006) (same); Pettus v. Horn, No. 04 Civ. 459(WHP), 2005 WL 2296561, at *1 n. 1 (S.D.NY Sept.21, 2005) (same). Because three or more of his lawsuits while he has been detained have been dismissed as "frivolous [or] malicious or [for] failure] to state a claim upon which relief may be granted," Pettus is ineligible by statute to file in forma pauperis ("IFP") "unless [he] is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).

Pettus v. Morgenthau, 554 F.3d 293, 295 (2d Cir. 2009).

At this time, this Court is not inclined to issue monetary damages as plaintiff is pro se, and this Court would feel remiss, if it did not issue a stern warning to Pettus regarding the consequences of filing meritless lawsuits. The following should be heeded: the sums awarded as sanctions are necessarily substantial, on account of the substantial costs incurred as a result as the cost of defending against meritless actions and proceedings.

While CEM cites to Mechta v. Mack, 156 AD2d 747, 748 [2nd Dept 1989], for the proposition that a pro se can and should be sanctioned for filing meritless actions and motions, [*3]the pro se in Mechta was an attorney representing himself, and presumably had some grasp of the law.

On September 11, 2015, this Court, pursuant to CPLR 1101(d), signed an ex parte poor person order. In support of his application to be considered a poor person, Pettus submitted an affidavit in which he averred that he was pursuing a legal malpractice action, he further averred at paragraph 9, that "no one else who is able to pay any required costs and fees has a beneficial interest in the results of this case." Pettus has moved to add his wife to this action, a person Pettus alleges has an interest in this action. Pettus' wife, Charlene Thompson, has at the very least a co-operative apartment which is the subject of much of the litigation that Pettus brings to this Court. Pursuant to CPLR 1101(a), the value of assets as well as income is to be reported under oath.

Accordingly, the order of this Court dated September 11, 2015 that permitted Pettus to proceed in this action as a poor person, is hereby vacated.

CONCLUSION

Accordingly, the motion to dismiss is granted, and the petition is hereby dismissed. Pettus' motion to add, Charlene Thompson to the caption is denied as moot. The motion to sanction Pettus is denied. The order of this Court dated September 11, 2015 that permitted Pettus to proceed in this action as a poor person, is hereby vacated.

The foregoing shall constitute the decision and order of the Court.

Dated: December 16, 2015

KENNETH L. THOMPSON JR. J.S.C.