Jemzura v. Mugglin

Aug 25, 1994
Versions:207 A.D.2d 645
616 N.Y.S.2d 104
1994 N.Y. App. Div. LEXIS 8524
—Per Curiam.

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to CPLR 506 [b] [1]) to, inter alia, remove respondent from the office of Justice of the Supreme Court.

In 1993, petitioners commenced a CPLR article 78 proceeding by order to show cаuse against New York State Electric and Gas Inc. (hereinafter NYSEG) and others. This proceeding was yet anothеr in a series of actions and proceedings commenced by petitioners over the past 17 years еssentially concerning the same set of facts. Specifically, the gravamen of petitioners’ underlying actions and proceedings is their belief that NYSEG is obligated to provide electric service to their 100-acrе farm located in the Town of New Lebanon, Madison County, as well as bear the cost of that project. Respondent granted NYSEG’s motion to dismiss the petition; petitioners’ subsequent motions for reconsideration were dеnied. Although petitioners filed a notice of appeal, they failed to perfect their appеal, which is now deemed abandoned (see, 22 NYCRR 800.12).

This proceeding, commenced in this Court pursuant to CPLR 506 (b) (1), is an attempt to have respondent removed ‍​​‌‌‌​‌​‌‌​​​‌​​‌​‌​​‌​​​‌​‌​​‌​‌‌​‌​‌‌​​​​‌​‌‌​‍from his office on grounds, inter alia, that he is incompetent. Additionally, petitioners seek writs of prohibition and mandamus, a declaration, and compensatory and punitive damages. Respondent has moved to dismiss the petition and petitioners have cross-moved to strike respondent’s motion to dismiss, to declare respondent in default, to grant judgment in their favоr, to sanction the Assistant Attorney-General whose affidavit supports the motion to dismiss and to proceed to trial.

Sifting through the myriad of alleged statutory and constitutional violations leveled against respondent as well as the prolix allegations in the petition, we are of the opinion that this proceeding represents nоthing more than petitioners’ dissatisfaction with the resolution of their most recent CPLR article 78 proceeding against NYSEG and is an attempt to attack collaterally respondent’s determinations and to relitigate issues whiсh have been previously decided. Accordingly, respondent’s motion to dismiss the petition is granted and petitioners’ cross motion is denied in all respects.

In addition to seeking dismissal of the petition, respondent requests that costs and sanctions be imposed against petitioners pursuant to 22 NYCRR part 130. We believe that the impositiоn of a $500 sanction is appropriate in this case. Initially, we note that ‍​​‌‌‌​‌​‌‌​​​‌​​‌​‌​​‌​​​‌​‌​​‌​‌‌​‌​‌‌​​​​‌​‌‌​‍respondent’s express request for the imposition of sanctions provided petitioners sufficient notice that such relief would be considered by this Court and, therefore, petitioners were given a reasonable opportunity to be heard on the issue pursuant to 22 NYCRR 130-1.1 (d) (see, Matter of Levin v Axelrod, 168 AD2d 178, 181).

It is well settled that 22 NYCRR 130-1.1 permits financial sanctions to be imposed upon parties in a civil proceeding who еngage in frivolous conduct. For conduct to be considered frivolous within the meaning of this rule, the proceeding must be, inter alia, "completely without merit in law or fact and cannot be supported by a reasonable argument fоr an extension, modification or reversal of existing law” (22 NYCRR 130-1.1 [c] [1]) or commenced "to harass or maliciously injure another” (22 NYCRR 130-1.1 [c] [2]).

In our view, the present proceeding is simply another in ‍​​‌‌‌​‌​‌‌​​​‌​​‌​‌​​‌​​​‌​‌​​‌​‌‌​‌​‌‌​​​​‌​‌‌​‍petitioners’ "barrage of litigation” over the years (Matter of Minister of Refm. Prot. Dutch Church v 198 Broadway, 76 NY2d 411, 413) and constitutes nothing more than a strategy to relitigatе matters previously decided. While some of the steps undertaken by petitioners over the past 17 years were certainly legitimate and of colorable merit, we find that the present proceeding is so lacking in fаctual and legal merit as to demonstrate an intention to use this Court not as a means of resolving genuine issues оf fact, but rather as a tool to vent their disagreement with and collaterally attack the dispositions ordered by respondent in the proceeding against NY-SEG. As such, we find that the proceeding is frivolous and meritless within the meaning of 22 NYCRR 130-1.1 (c) (1) and constitutes аn abuse of the judicial process supporting the imposition of sanctions (see, Maroulis v 64th Street-Third Ave. Assocs., 77 NY2d 831; Bell v New York Higher Educ. Assistance Corp., 76 NY2d 930).

Moreover, we find that the nature of various allegations in the petition provide an independent basis on ‍​​‌‌‌​‌​‌‌​​​‌​​‌​‌​​‌​​​‌​‌​​‌​‌‌​‌​‌‌​​​​‌​‌‌​‍which to impose the sanctiоn. Most egregious are petitioners’ allegations accusing respondent of being, inter alia, a "tool of organizеd crime”. Such imputations, without any indicia of evidence in support thereof, are outrageous and will not be tolerated by this Court. We find that these allegations are undertaken primarily, if not solely, to harass respondent and constitute frivolous conduct as defined in 22 NYCRR 130-1.1 (c) (2).

In fixing the sanction at $500, we have taken into consideration the history of petitioners’ protracted litigation concerning the provision of electricity to their farm; petitioners’ pro se status; the time, attention and funds of the Attorney-General that have been diverted unnecessarily; and the nеed to deter petitioners from engaging in future dilatory behavior (see, Lichter v State of New York, 198 AD2d 687, 688). While we have selected an amount in ‍​​‌‌‌​‌​‌‌​​​‌​​‌​‌​​‌​​​‌​‌​​‌​‌‌​‌​‌‌​​​​‌​‌‌​‍the lower range of permissible sanctions (see, 22 NYCRR 130-1.2), we caution petitioners that future dilatory actions and meritless litigatiоn may result in additional, increased sanctions.

Finally, we note that pursuant to 22 NYCRR 130-1.3, the sanction shall be deposited with the Clerk of the Court for transmittаl to the State Commissioner of Taxation and Finance (see, Matter of Schulz v Washington County, 157 AD2d 948, 949).

Mercure, J. P., Crew III, Casey and Weiss, JJ., concur. Adjudged that respondent’s motion is granted, cross motion denied, petition dismissed and a sanction in the amount of $500 is imposed against petitioners pursuant to 22 NYCRR 130-1.1.