Muka v. New York State Bar Ass'n

• Decision Date: 03 August 1983
• Citation: 120 Misc.2d 897,466 N.Y.S.2d 891
• Parties: Betty O. MUKA, Plaintiff, v. NEW YORK STATE BAR ASSOCIATION, Defendant.
• Court: New York Supreme Court

Page 891

466 N.Y.S.2d 891

120 Misc.2d 897

Betty O. MUKA, Plaintiff, v.NEW YORK STATE BAR ASSOCIATION, Defendant.

Supreme Court, Tompkins County.

Aug. 3, 1983.

Betty O. Muka, plaintiff, pro se.

DeGraff, Foy, Conway, Holt-Harris & Mealey, Albany, Robert H. Iseman and F. Douglas Novotny, of counsel, Albany, for defendant.

DECISION

HOWARD A. ZELLER, Justice.

DefendantNew York State Bar Association moves to dismiss the amended complaint of plaintiffBetty O. Muka on several grounds, including collateral estoppel, res judicata, the statute of limitations, and failure to state a cause of action.Mrs. Muka, who appears pro se, has filed an affidavit and exhibits in opposition.

THE AMENDED COMPLAINT

The amended complaint essentially is based upon a conspiracy theory.Paragraph 4 alleges defendantNew York State Bar Association on or before March 27, 1975 became "a member of a conspiracy for the purpose of impeding, hindering, obstructing, and defeating, by way of false and malicious criminal prosecution ... with purposeful intent to deny citizen Betty O. Muka the equal protection of the Penal Law ... the common law, and the federal law, ... and the provisions of the United States Constitution and the New York State Constitution...."Paragraph 5 alleges the State Bar Association conspired with one or more of over 140 listed persons and entities, including Richard J. Bartlett, City of Binghamton, County of Chemung, Louis Greenblott, J. Clarence Herlihey, Ithaca Teachers Association, Harold E. Koreman, A. Franklin Mahoney, Gerald Stern, Cornell Law School, Joseph W. Bellacosa, the United States, Paul J. Yesawich, Jr., the Appellate Division, Third Department, Hugh L. Carey, N.Y. State Court of Appeals, the State of New York, the N.Y. State Commission on Judicial Conduct, Howard G. Munson, D. Bruce Crew, Robert F. Fischer, Richard F. Kuhnen, David F. Lee, Jr., Frederick B. Bryant, and Howard A. Zeller, the last six being supreme court justices in the sixth judicial district.The complaint continues for several pages reciting various grievances and concludes by demanding judgment of $20,000,000,000.00.

RULE OF NECESSITY

I have been a defendant in prior lawsuits brought by Mrs. Muka, I am named as a conspirator in this action, and I am a member of the New York State Bar Association.Under normal circumstances I would recuse myself from this case.But the circumstances here are unusual.Mrs. Muka has either sued or accused of crime all supreme court justices of the sixth judicial district, one of whom she once took into custody by means of a "citizens arrest".Since 1982 Mrs. Muka has had pending an action in which the named defendants are the "Supreme Court of the State of New York and its judges, law clerks, clerks, employees and staff, as officials and as private individuals."All justices of this judicial district, and probably elsewhere in the State, are members of the New York State Bar Association.It has been Mrs. Muka's habit to sue, attack as incompetent, or call for the removal of any judge who does not render a decision to her liking.Thus, every supreme court justice in the State would have a reason for declining to sit in this case.The "Rule of Necessity" must be applied."As stated by Sir Frederick Pollock, that rule mandates that 'although a judge had better not, if it can be avoided take part in the decision of a case in which he has any personal interest, yet he not only may but must do so if the case cannot be heard otherwise' "(Matter of Morgenthau v. Cooke, 56 N.Y.2d 24, 29 n. 3, 451 N.Y.S.2d 17, 436 N.E.2d 467).This rule is especially applicable to cases where a pro se litigant has "manifested an intent to sue all those who try" to hear the case(seeEismann v. Miller, 101 Idaho 692, 696, 619 P.2d 1145, 1149(1980) and authorities cited therein).Here, Mrs. Muka has named as defendants the "Supreme Court of the State of New York and its judges....""A judge is not disqualified merely because a litigant sues or threatens to sue him"(United States v. Grismore, 564 F.2d 929, 933, 10th Cir.1977, cert. denied, 435 U.S. 954, 98 S.Ct. 1586, 55 L.Ed.2d 806).So, I shall decide the motion.

THE MOTION

This is not Mrs. Muka's first lawsuit against the State Bar Association.By process dated December 20, 1977, Mrs. Muka commenced an action in the United States District Court for the Northern District of New York against Kenneth Cohn and over one hundred other defendants, including the New York State Bar Association, in which she claimed the existence of a conspiracy to deprive her of her civil rights.The action was dismissed on the merits by United States District Court Judge Howard G. Munson in a Memorandum-Decision and Order dated October 30, 1978 in which he ruled, among other things, that "[t]he complaint in this case is 'patently without merit' and 'wholly insubstantial and frivolous' ".

By a summons and complaint dated August 16, 1978 filed in the United States District Court, Mrs. Muka commenced litigation against United States District Court Judge James T. Foley and a six-page list of over one hundred defendants including the New York State Bar Association.Once again, the gravamen of the complaint was an alleged conspiracy to deprive Mrs. Muka of her civil rights.By a Memorandum-Decision and Order dated October 30, 1978, Judge Munson found the allegations in the complaint " 'patently without merit' and 'wholly insubstantial and frivolous' " and he dismissed it with prejudice.

On October 19, 1981, Muka commenced a third action, this one in State Supreme Court, against the State Bar Association by service of a summons with notice in which she claimed a conspiracy to deprive her of her civil rights.The State Bar Association moved to dismiss after Mrs. Muka failed to timely serve a complaint.Invoking the principles of Barasch v. Micucci, 49 N.Y.2d 594, 427 N.Y.S.2d 732, 404 N.E.2d 1275, this court(Ellison, J.) dismissed her complaint in a decision dated October 13, 1982.

The instant litigation is the fourth time that an action against the State Bar Association has been commenced by Mrs. Muka based mainly upon the conspiracy theory.While certain specific allegations contained in the amended verified complaint in the present action are different from those set forth in the U.S. District Court lawsuits, the essential character of the allegations remains the same, namely, that the State Bar Association, in concert with various public officials and private individuals, conspired to deprive Mrs. Muka of her civil rights.The central allegation in the amended verified complaint in this action is that the conspiracy was entered into "on or about the 27th day of March, 1975."

Res judicata applies not only to issues which were actually raised in a prior disposition on the merits, but also as to issues which could have been raised.In the words of the Fourth Department in Chisholm-Ryder Co. v. Sommer & Sommer et al., 78 A.D.2d 143, 144, 434 N.Y.S.2d 70: "It is familiar law that the doctrine of res judicata or claim preclusion forecloses a party from relitigating a cause of action which was the subject matter of a former lawsuit or from raising issues or defenses that might have been litigated in the first suit (seeGramatan Home Investors Corp. v. Lopez, 46 NY2d 481, 495[414 N.Y.S.2d 308, 386 N.E.2d 1328] )".In view of the similarity of the allegations contained in the amended complaint compared to those in the previous United States District Court lawsuits, the principle of res judicata applies.

"On a motion addressed to the sufficiency of a complaint the facts pleaded are presumed to be true and accorded every favorable inference ... On the other hand, allegations consisting of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence are not entitled to such consideration."(Roberts v. Pollack, 92 A.D.2d 440, 444, 461 N.Y.S.2d 272).

The amended complaint in the present action contains bare legal conclusions and inherently incredible allegations concerning the State Bar Association.The amended complaint fails to specify the acts undertaken by the State Bar Association in furtherance of the alleged conspiracy to deprive Mrs. Muka of her rights.For example, Mrs. Muka alleges the conspirators maliciously instituted a criminal charge of unlawful imprisonment in the second degree against her and that her conviction "became unconditionally reversed on November 28, 1981" and terminated in her favor.(See, People v. Betty O. Muka, 72 A.D.2d 649, 421 N.Y.S.2d 438, lv. to app. den.50 N.Y.2d 847, 430 N.Y.S.2d 1032, 407 N.E.2d 1360;440 F.Supp. 33(D.N.Y.1981), mod.663 F.2d 1068(2d Cir., 1981).Lacking from the complaint is any allegation of an act connecting the State Bar Association with the alleged unlawful imprisonment prosecution.

General conclusory allegations of a conspiracy are not sufficient to state a cause of action.The complaint and amended complaint fail to state a cause of action.

THE PRO SE LITIGANT

Mrs. Muka is a middle aged married woman who is a graduate of a law school but not an attorney at law.She has engaged in pro se litigation for over ten years (see, Betty O. Muka v. Board of Education of the Ithaca School District et al., 41 A.D.2d 882, 342 N.Y.S.2d 888, decided April, 1973) and has commenced hundreds of actions in the courts of this State.For the most part they lacked merit and have been dismissed.

Many of her summonses name multiple defendants.Her action in the United States District Court against U.S. District Court Judge James T. Foley(complaint dated August 16, 1978) names as other defendants Governor Hugh Carey, New York State Attorney GeneralLouis Lefkowitz, United States Attorney General Griffin Bell, the New York State Legislature"including both houses and each and every member thereof", the American Bar Association, Chief Judge Charles Breitel of the New York State Court...