Liotti v. Peace

• Decision Date: 23 September 2003
• Docket Number: No. XXXXXX.,XXXXXX.
• Citation: Liotti v. Peace, 2003 NY Slip Op 51762, 36 Misc.3d 1218, 959 N.Y.S.2d 90 (N.Y. Sup. Ct. 2003)
• Parties: Thomas F. LIOTTI, Plaintiff, v. Ernest J. PEACE et al., Defendants.
• Court: New York Supreme Court

36 Misc.3d 1218

959 N.Y.S.2d 90

2003 N.Y. Slip Op. 51762

Thomas F. LIOTTI, Plaintiff,

v.Ernest J. PEACE et al., Defendants.

No. XXXXXX.

Supreme Court, Nassau County, New York.

Sept. 23, 2003.

OPINION TEXT STARTS HEREJOHN DIBLASI, J.

“Since the seventeenth century, the common law has immunized judges from damage claims arising out of their judicial acts” ( Tucker v. Outwater, 118 F.3d 930,932 [2d Cir.1997], cert. denied522 U.S. 997 [1997] ), a doctrine “embraced” ( ibid.) by the highest court of the State of New York almost two centuries ago ( Yates v. Lansing, 5 Johns. 282,291 [1810], affd. 9 Johns. 395 [1811] ) and by the United States Supreme Court for the past 130 years (Bradley v. Fisher, 80 U.S. [13 Wall. 335 [1871] ). Indeed, as recognized by the high court in Bradley, it is “a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself” (id., 80 U.S., at 347). For that reason, it has been and remains the law of this country that except when a judge acts in the absence of all jurisdiction, he is immune from suit for his actions ( Bradley v. Fisher, supra; Alvarez v. Snyder, 264 A.D.2d 27, 34, 702 N.Y.S.2d 5 [1st Dept.2000], lv. denied95 N.Y.2d 759 [2000],cert. denied sub nom. Diaz v. Snyder, 531 U.S. 1158 [2001] ).

Notwithstanding that settled principle and the numerous reported decisions which have adhered to it, plaintiff at bar, an attorney and a Village Justice who may be said to be “at war” with defendant Nassau County Court Judge Donald DeRiggi, has instituted this lawsuit claiming, in general terms, that Judge DeRiggi, both acting alone and in conspiracy with co-defendant Ernest J. Peace, an attorney, defamed him. Because this lawsuit is entirely without support in fact and law, the complaint is dismissed to the extent that it asserts any claims against Judge DeRiggi either individually or in his capacity as a Judge of the Nassau County Court.

I. RELEVANT FACTUAL Background

The genesis of this action is a criminal proceeding, People v. John P. Daly (the Daly case), tried to a jury in Nassau County Court with Judge DeRiggi presiding, at which Daly was represented by Peace. Following Daly's conviction but prior to his sentencing, Peace was discharged as counsel by his client and plaintiff was retained to represent him in all further proceedings.

The first significant step taken by plaintiff was the filing of a motion for relief from Daly's conviction pursuant to CPL § 330.30 (the 330 Motion). At the core of the 330 Motion was Daly's contention that Peace's representation of him was ineffective. That motion was denied by Judge DeRiggi in a decision and order rendered on November 15, 2002. In that decision Judge DeRiggi, inter alia, commented upon what he considered to be the “abusive language and baseless personal attacks [made by plaintiff] upon [ ] Peace” (Pernick Affirm., Exh.A, Decision and Order November 15, 2002, p. 7) .¹

Shortly thereafter, plaintiff filed a second motion (the 330 Reargument Motion) seeking reargument and renewal of the 330 Motion. By decision and order issued December 6, 2002, Judge DeRiggi denied the 330 Reargument Motion.

At some time following the filing of the papers-in-chief in support of the 330 Motion, Peace learned of the motion. He then wrote to Judge DeRiggi on September 26, 2002 (the Peace Letter) requesting leniency for his former client. In that letter he acknowledged that he was aware of the statements made against him by plaintiff, and made his own unfavorable remarks in return.

Thereafter, Peace filed what he characterized as an “Amicus Curiae” affirmation dated November 21, 2002 (the Peace Affirmation) in response to the papers-in-chief and reply papers submitted by plaintiff on the 330 Motion. The Peace Affirmation, inter alia, defends Peace's representation in the Daly case and attacks the credibility of various claims made against him by plaintiff, Daly and Daly's wife.

Both before and after the filing of the 330 Motion and the 330 Reargument Motion (together hereinafter “the two Daly motions”), plaintiff appeared in other criminal matters before DeRiggi, whose recusal in those matters he repeatedly sought. In one particular case, involving a defendant named Nathan Powell (the Powell case), who is charged with homicide, plaintiff filed a CPLR Article 78 petition with the Appellate Division, Second Department, for a writ of prohibition, seeking relief including Judge DeRiggi's recusal. In his supporting papers in that proceeding (the Powell Article 78 proceeding) plaintiff recited his past encounters with Judge DeRiggi, who he described, inter alia, as “impervious to his inability to be fair and impartial”, and whose conduct in the Powell case plaintiff characterized as “bizarre” (Pernick Affirm., Exh.D, par. 11, 12). In that same proceeding, plaintiff detailed the accusations made by him against Judge DeRiggi and by Judge DeRiggi against plaintiff, which are before the Commission on Judicial Conduct and the Disciplinary Committee, respectively.

In a decision and order issued on April 3, 2003, the Appellate Division dismissed the petition in the Powell Article 78 proceeding (Matter of Powell v. DeRiggi, 304 A.D.2d 506, 756 N.Y.S.2d 876 [2d Dept.2003] ). An attempt to have that decision reviewed by the Court of Appeals was unsuccessful. Thus, Judge DeRiggi remained as the trial judge in the Powell case.

On April 28, 2003 Judge DeRiggi scheduled the trial of the Powell case to commence on May 27, 2003. Notably, it was on May 27, 2003 that plaintiff purchased an index number in this action and filed his complaint.

II. PROCEDURAL POSTURE

In his 27–paragraph complaint plaintiff asserts claims against Peace and Judge DeRiggi, the latter of whom is sued both individually and in his judicial capacity.² To the extent relevant, the complaint makes the following allegations against the Judge:

1. “At all material time hereinafter set forth, DeRiggi exceeded his judicial authority and jurisdiction and acted in concert with Peace's following acts of defamation and libel per se against Liotti.” (Complaint, par. 4 [italics in original] ).

2. “Heretofore and by written communications dated September 26, 2002 and November 21, 2002, respectively, Peace defamed Liotti in his profession and business and maliciously uttered, published and disseminated to third parties false, defamatory, malicious and libelous statements and attributed to Liotti libelous and scurrilous conduct by communication with Nancy Daly, the wife of one of Liotti's clients, and in an ex parte communication with the Nassau County Court, after Peace's legal services had been discontinued and he was no longer the attorney of record or counsel for a former client.” (Complaint, par.5 [italics in original] ).

3. “Upon information and belief, the written communications dated September 26, 2002 and November 21, 2002 were filed in the Office of the Clerk of the County Court, were not under seal and constitute a public record.” (Complaint, par.6).

4. “By unauthorized written communication dated September 26, 2002 to Hon. Donald P. DeRiggi ... Peace, without authority and after his legal representation of John P. Daly was terminated, wrote to the court and with respect to Liotti made the following disparaging remarks:

‘If Mr. Liotti, better known around the courts of Nassau and Suffolk Counties as, ‘Mr. Legend, in his own mind’, has offended this Court by his incredible ravings, I know that you are too fine a Judge and too honorable a man to permit his meanspiritedness to effect your decision regarding the sentence of John Daly. I hope Mr. Liotti has attached to his written rantings ...'.” (Complaint, par. 10).

5. “Subsequently, by affirmation under oath dated November 21, 2002 ... Peace forwarded to DeRiggi an affirmation, although he was discharged and no longer representing John P. Daly and had not been asked by the court to submit an affirmation and had not been requested by John P. Daly or anyone acting on his behalf to submit an affirmation and had no standing to do so, wherein Peace took the opportunity to defame Liotti in the following manner:

(a) ‘5. Mr. Liotti fills his papers with venom in attacking me personally in the most vicious and inappropriate way, totally divorced from any connection to the instant motion. In addition, besides Mr. Liotti, John Daly and Nancy Daly were also loose regarding the truth in their affidavits. Untruths can be found in the original motion of Mr. Liotti, in his memorandum of law, in his reply affirmation and in the affidavits of John Daly and Nancy Daly.’

(b) ‘6.... Mr. Liotti makes other criticisms which are unsound, and he makes suggestions which no honest attorney would ever make.’

(c) '11. I cannot believe that both John Daly and Nancy Daly, as well as Mr. Liotti do not tell the truth when they claim that I was distracted during the trial by my wife's illness.' “ (Complaint, par.11).

6. “That the aforesaid false, defamatory, malicious and libelous statements and/or utterances consisted of Peace stating that Liotti was ‘a liar’, that Liotti was ‘borderline insane’, that Liotti was ‘vicious', that Liotti was ‘not trustworthy’, that he was ‘not believable’ and that he was and constitutes ‘a danger’ to John Daly, Liotti's client.” (Complaint, par.14).

7. “The statements and/or utterances so communicated were and are false, defamatory, malicious, reckless, careless and constitute defamation and libel per se.” (Complaint, par.15 [italics in original].

8. “At all material times hereinafter set forth, DeRiggi acted, ultra vires, in an extra-judical manner and outside the scope of his judicial authority and jurisdiction when he, upon information and belief, solicited and subsequently permitted, allowed and did not reject Peace's affirmation [ ] to be submitted to the court and filed as a...