Fariello v. Campbell

• Decision Date: 06 August 1994
• Docket Number: No. CV 93-4426.,CV 93-4426.
• Parties: Salvatore FARIELLO, Plaintiff, v. Grace CAMPBELL, in her personal capacity, Theresa Mullins, in her personal capacity, William Ekadis, in his personal capacity, David Freundlich, in his personal capacity, and an Unknown Law Clerk in the Law Department of the Family Court, State of New York, Suffolk County, in his or her personal capacity, Defendants.
• Court: U.S. District Court — Eastern District of New York

860 F. Supp. 54

Salvatore FARIELLO, Plaintiff, v. Grace CAMPBELL, in her personal capacity, Theresa Mullins, in her personal capacity, William Ekadis, in his personal capacity, David Freundlich, in his personal capacity, and an Unknown Law Clerk in the Law Department of the Family Court, State of New York, Suffolk County, in his or her personal capacity, Defendants.

No. CV 93-4426.

United States District Court, E.D. New York.

August 6, 1994.

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Salvatore Fariello, plaintiff pro se.

G. Oliver Koppell, Atty. Gen., State of New York by Robert K. Drinan, Deputy Atty. Gen., Mineola, NY, for defendants.

OPINION AND ORDER

SPATT, District Judge:

As the decision by Chief Judge Jon O. Newman in In re Martin-Trigona, 9 F.3d 226 (2d Cir.1993), illustrates, it is the plight of the federal court at times to be repeatedly subject to the machinations of certain plaintiffs who pursue vexatious and unmeritorious litigation. This case is one such instance.

The plaintiff pro se owns a printing business, and publicly advocates the supremacy of "fathers' rights" based of his interpretation of the Old Testament. The plaintiff has, for the fourth time, brought before this Court a vexatious and harassing federal civil rights lawsuit regarding certain "conspiratorial" acts by the defendants, who are associated with the Family Court of Suffolk County and include a judge, a hearing examiner and a court clerk. The first two such lawsuits were respectively dismissed by the Court on November 5, 1992 and May 8, 1993. The latter decision is reported at Fariello v. Rodriguez, 148 F.R.D. 670 (E.D.N.Y.1993), aff'd on opinion below, 22 F.3d 1090 (2d Cir.1994). The third suit was voluntarily withdrawn by Fariello and closed on June 16, 1994, after this Court declined to issue a preliminary injunction prohibiting further proceedings in the Family Court against Fariello.

The defendants move pursuant to Fed. R.Civ.P. 12(b)(6) to dismiss the complaint, or in the alternative for summary judgment in their favor. For the reasons stated below, the Court grants the defendants' alternative motion for summary judgment, and dismisses the plaintiff's complaint as a matter of law.

BACKGROUND

The plaintiff Salvatore Fariello ("Fariello") and his ex-wife Karen Marotta ("Marotta") were married on January 1, 1971. Their son Jared was born in 1978. In 1981, Fariello and Marotta executed a separation agreement, which was not converted into a divorce judgment. Marotta subsequently commenced a divorce action in the New York State Supreme Court, Suffolk County, in 1982, and a judgment of divorce was granted on March 5, 1982. The judgment required, among other things, that Fariello pay $40 per week in child support, half directly to Marotta, and half to a trust account for Jared. The State Supreme Court did not retain jurisdiction for any modifications of the divorce judgment.

In October 1990, Marotta petitioned the Family Court of Suffolk County ("Family Court") for a modification of the divorce judgment. A hearing was held on January 20, 1991, before Hearing Examiner William Rodriguez, and in an order dated March 27, 1991, Fariello was found to have "failed to comply with the terms of the Divorce directing maintenance of bank book with deposits of $20.00 per week. Bank Book was closed 12-85. Respondent has not paid $20.00 per week directly to Petitioner since June 1990." As a result of this finding, the divorce judgment and original child support order were modified, and Fariello was directed by the Hearing Examiner's order to pay $40 per week in child support directly to the Suffolk County Support Enforcement Bureau. In addition, the order fixed Fariello's trust account arrears at $6,600 and direct payment arrears at $620, for a total of $7,220 in support arrears. Credited against this total was $1,375 of payments made by Fariello. A judgment was entered in favor of Marotta for the sum of $5,854 on April 25, 1991 by Hearing Examiner Rodriguez.

Fariello filed objections to the findings and the March 27, 1991 order of Hearing Examiner Rodriguez. His objections, however, were denied by Family Court Judge W. Bromley Hall in an order entered on August 19, 1991. Judge Hall found that "a careful review of the record indicates that the Hearing Examiner afforded the parties a full and fair opportunity to be heard and that his decision was based on the weight of the credible evidence presented."

Subsequently, Marotta petitioned for enforcement and another modification of the child support order. Fariello cross-petitioned for a downward modification of the $40 per week child support payment. Thereafter, Marotta filed a petition alleging that Fariello was in violation of the modified child support order of March 27, 1991. A hearing was held before Hearing Examiner Rodriguez on all of these issues, at which both parties and other witnesses testified. In findings of fact dated September 24, 1991, Hearing Examiner Rodriguez found that with respect to the petitions to modify the child support payments, neither an increase nor decrease in the amount of child support was warranted. The Hearing Examiner also held that Fariello was in willful violation of the March 27, 1991 child support order, having failed to make even one support payment to the Support Enforcement Bureau. The Hearing Examiner determined that as of August 14, 1991, Fariello was in arrears to the Support Enforcement Bureau in the amount of $1,120, and directed that this amount be reduced to a money judgment for the benefit of Marotta.

In late 1991, Fariello filed objections to Hearing Examiner Rodriguez's findings of September 24, 1991, as well as to certain other orders pertaining to proceedings in which Fariello challenged Marotta for the custody of Jared. Fariello also moved to vacate the money judgments entered against him. On December 11, 1991, Family Court Judge Arthur J. Abrams denied Fariello's objections and motion. Undeterred, Fariello again filed motions in early 1992 seeking to vacate the September 24, 1991 findings of Hearing Examiner Rodriguez, and to stay all support payments pending a reconsideration of his application to suspend his child support obligation. On May 21, 1992, Judge Abrams also denied these motions.

On June 9, 1992 an "Order of Disposition (Violation of Support Order)" was issued by Hearing Examiner Rodriguez, with respect to Fariello's arrears to the Child Enforcement Bureau. Based on the arrears, the June 9, 1992 Order of Disposition granted judgment in favor of Marotta in the amount of $1,120. Fariello filed objections to the June 9, 1992 judgment. In an order responding to those objections dated August 13, 1992 and corrected on August 18, 1992, Family Court Judge Marion T. McNulty denied Fariello's objections. According to Judge McNulty, Fariello contended that the June 9th Order was defective, because (1) it mistakenly listed the underlying hearing concerning his violation of the original support order, which was held on January 20, 1991, to have been held on September 27, 1991, and (2) it listed an incorrect date for the underlying order of child support. Judge McNulty ruled these mistakes were harmless clerical errors, and held that the Hearing Examiner's findings and conclusions of September 24, 1991 were supported by the record.

On September 8, 1992, Fariello filed a notice of appeal to the Appellate Division, Second Department. In the notice, he stated that he was appealing Judge McNulty's corrected order of August 18, 1992, Hearing Examiner Rodriguez's order and judgment of June 9, 1992, and the order and judgment of April 25, 1991 wherein a judgment of $5,854 was entered in favor of Marotta. In a second notice of appeal to the Appellate Division, Second Department dated October 14, 1992, Fariello appealed Judge Abrams' order of May 21, 1992.

In addition to these appeals, Fariello had also commenced an Article 78 proceeding in the New York State Supreme Court, Suffolk County, naming as respondents Marotta, Judge Abrams, Hearing Examiner Rodriguez, and others who were participants in the Family Court litigation. In his petition, Fariello sought review and reversal of virtually all the orders and judgments entered against him by the Family Court. Among other things, Fariello petitioned for (i) an order directing the Family Court to restore Fariello's visitation rights under the divorce judgment; (ii) an order directing the Family Court to conduct a hearing outside of Suffolk County, on the issue of the suspension of his child support payments, (iii) an order compelling the Family Court to vacate the money judgments and orders entered against Fariello regarding his child support payments and arrears, and prohibiting the Family Court from conducting any enforcement proceedings against Fariello with respect to these payments and arrears; (iv) an order prohibiting the Child Enforcement Bureau from enforcing the orders of the Family Court regarding his child support payments; and (v) vacating the determination of Hearing Examiner Rodriguez regarding child support payments and arrears. On February 3, 1993, Justice Paul Baisley dismissed the petition as a matter of law, because the relief requested was precluded by New York CPLR § 7801(2).

Dissatisfied with the unfavorable rulings in the state court, Fariello turned his efforts toward the federal court. Fariello drafted and filed a closely-spaced forty page civil rights complaint under 42 U.S.C. § 1983 against all of the parties in the Family Court proceedings, including the Family Court judges, the Hearing Examiners, Marotta and her new husband. The complaint alleged a conspiracy by the state courts to deny divorced fathers in general, and Fariello in particular, equal protection under the United States Constitution. By bringing the action, Fariello in effect sought another route by which to review and reverse the rulings against him...