Polur v. Raffe

• Decision Date: 14 July 1989
• Docket Number: No. 88 Civ. 2514(LLS).,88 Civ. 2514(LLS).
• Citation: 727 F. Supp. 810
• Parties: Sam POLUR, Plaintiff, v. Hyman RAFFE, A.R. Fuels, Inc., Ira Postel, P.C., Feltman, Karesh, Major & Farbman, Esqs., Donald F. Schneider, Esq., Alvin F. Klein, Justice of the Supreme Court, State of New York, County of New York, David H. Edwards, Jr., Justice of the Supreme Court, State of New York, County of New York, Donald F. Diamond, Special Referee of the Supreme Court, State of New York, County of New York, Defendants.
• Court: U.S. District Court — Southern District of New York

727 F. Supp. 810

Sam POLUR, Plaintiff, v. Hyman RAFFE, A.R. Fuels, Inc., Ira Postel, P.C., Feltman, Karesh, Major & Farbman, Esqs., Donald F. Schneider, Esq., Alvin F. Klein, Justice of the Supreme Court, State of New York, County of New York, David H. Edwards, Jr., Justice of the Supreme Court, State of New York, County of New York, Donald F. Diamond, Special Referee of the Supreme Court, State of New York, County of New York, Defendants.

No. 88 Civ. 2514(LLS).

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

July 14, 1989.

Sam Polur, New York City, pro se.

Howard M. Bergson, Smithtown, N.Y., for defendants Hyman Raffe and A.R. Fuels, Inc.

Feltman, Karesh, Major & Farbman, New York City, for defendants Feltman, Karesh, Major & Farbman and Donald F. Schneider (Edward Weissman, of counsel).

STANTON, District Judge.

Defendants Hyman Raffe, A.R. Fuels, Inc., Feltman, Karesh, Major & Farbman, and Donald F. Schneider move under Fed. R.Civ.P. 12(b)(1), (6) and 56 for an order dismissing the complaint and a permanent injunction barring the plaintiff from bringing any further actions against them. Plaintiff also moves for summary judgment.

The defendants' motion is granted in part and denied in part. Plaintiff's motion is denied.

BACKGROUND

In July 1985 Sam Polur, Esq. was held in criminal contempt by Justice Alvin Klein of the New York State Supreme Court in Raffe v. Riccobono, No. 9522/85 (N.Y. Sup.Ct. July 1, 1985) ("Riccobono I"). Polur brings this action under 42 U.S.C. § 1983 (1982) and the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-68 (1982 and Supp. IV 1986) alleging that the defendants conspired to convict him of criminal contempt.

The contempt order arose out of litigation concerning Puccini Clothes, Ltd. ("Puccini"). Puccini was owned by Milton Kaufman, Eugene Dann, Robert Sorrentino and defendant Raffe. Kaufman, who was President and a director of Puccini, died in 1979. Citibank and Jerome H. Barr qualified as executors of his estate. The remaining shareholders did not call a meeting to elect a director to replace Kaufman, in violation of the Puccini's shareholders' agreement. Nor did they implement the provision in the shareholders' agreement governing the disposition of Kaufman's shares. In 1980 the executors petitioned the New York State Supreme Court for the dissolution of Puccini under N.Y.Bus. Corp.Law ("BCL") § 1104 on the ground that the shareholders failed to comply with the shareholders' agreement. The court granted the dissolution and named John V. Lindsay as receiver pursuant to BCL § 1202(a)(1). Lindsay declined the appointment. Raffe moved to have himself appointed receiver. The court denied the motion and instead appointed Lee Feltman, Esq., a partner at defendant Feltman, Karesh & Major (now Feltman, Karesh, Major & Farbman, hereinafter "FKMF"). Feltman retained FKMF as counsel. The court also disqualified Raffe's attorney, George Sassower, due to a conflict of interest caused by Sassower's previous representation of Dann and Sorrentino.

Sassower ignored the disqualification, and he and Raffe, either individually or jointly, "bombarded both the state and federal courts with numerous motions (over 300), law suits (35), and Article 78 proceedings (40) directed against FKMF, Feltman, the attorneys for the other Puccini shareholders, various members of the judiciary, court appointed referees, and the New York State Attorney General."¹ Sassower v. Sheriff of Westchester County, 824 F.2d 184, 186 (2d Cir.1987). For a more detailed history of the litigation concerning the Puccini dissolution and receivership, see Raffe v. Citibank, N.A., 84 Civ. 305 (E.D.N.Y. August 1, 1984), aff'd mem., 779 F.2d 37 (2d Cir.1985) and Raffe v. John Doe, 619 F.Supp. 891 (S.D.N.Y.1985).

As a result of the number of suits Raffe and Sassower brought, FKMF and others obtained an injunction (the "injunction") prohibiting Raffe, Sassower and anyone acting in concert or cooperation with either of them from filing or serving any lawsuits against FKMF and others arising out of or relating to the Puccini dissolution and receivership. In the Matter of the Application of Jerome H. Barr, No. 1816/80 (N.Y. Sup.Ct. Jan. 23, 1985) (Gammerman, J.).

In May 1985 Polur served FKMF with the complaint in Riccobono I and appeared as attorney of record for Raffe. Polur also joined Raffe and Sassower as plaintiffs in two federal actions: Raffe v. Riccobono, No. 85 Civ. 3927 (S.D.N.Y. filed May 23, 1985); and Raffe v. Relkin, No. 85 Civ. 4158 (S.D.N.Y. filed June 3, 1985). In all three actions plaintiffs sued FKMF, various state court judges, and others, and claimed improprieties in Puccini's dissolution and receivership.²

FKMF moved in Riccobono I for an order holding Polur, Sassower, and Raffe in contempt for violating the injunction against commencing any further litigation. In a hearing before Justice Klein, Polur stated "I say before this Court ... I don't believe the injunction should be obeyed. I am not going to obey it and I am suggesting that George Sassower not obey that order because it is such a monstrosity." Exhibit H to FKMF and Schneider's memo in support, transcript p. 30. On July 1, 1985 Justice Klein held Polur in criminal contempt for violating the injunction, sentenced him to 30 days in jail and ordered him to pay FKMF a $250.00 fine.

Polur moved for reargument, which was denied. The Appellate Division affirmed. Riccobono I, 113 A.D.2d 1038, 493 N.Y.S.2d 70 (1985). The Court of Appeals dismissed Polur's appeal as an appeal from a non-final order. Riccobono I, (Ct.App. Nov. 26, 1985). Polur's petition for a writ of certiorari was denied. Polur v. New York, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987), reh'g denied, 482 U.S. 921, 107 S.Ct. 3199, 96 L.Ed.2d 687 (1987).

Polur filed an Article 78 proceeding against Justice Klein seeking to prohibit him from enforcing the contempt order. He first sought an interim stay of the contempt order pursuant to N.Y.Civ. Prac.L. & R. § 7805 ("CPLR") which was denied by Judge Sullivan of the Appellate Division, First Department. Exhibit L to FKMF and Schneider's memo in support, transcript at 15. The Appellate Division dismissed the Article 78 proceeding. In the Matter of the Application of Hyman Raffe, George Sassower, and Sam Polur, 113 A.D.2d 1033, 493 N.Y.S.2d 676 (1985).

Justice Klein appointed Donald F. Diamond as special referee to appraise the reasonable amount of attorneys' fees. Referee Diamond assessed $12,500 against Polur. Polur then brought an Article 78 proceeding against Diamond, asserting that Justice Klein had directed him to issue a Report and Recommendation on sanctions, but that instead he had issued an invalid "judgment". Justice Gammerman dismissed the proceeding, holding "what you're trying to set aside is the assessment by Diamond of sanctions against you.... In doing that, however, Diamond was acting not as a referee but really as a Judge of this Court. And I think that your remedy is to go to the Appellate Division." Polur v. Special Referee Donald Diamond, No. 1816/80 (N.Y.Sup.Ct. April 15, 1986), transcript at p. 2. The Appellate Division upheld Diamond's determination. In re Sam Polur, 120 A.D.2d 992, 502 N.Y.S.2d 315 (1986).

While his appeal was pending, Mr. Polur filed two habeas corpus petitions in the New York State Courts. His petition before the New York Supreme Court was dismissed because of the pendency of his direct appeal. The State Of New York ex rel. Sam Polur v. The Sheriff of the City of New York, No. 16595/85 (New York Supreme Court July 17, 1985). His petition before the Appellate Division was dismissed for failure to appeal the injunction order and as a "successive" petition for a writ under CPLR § 7003(b). The State of New York ex rel. George Sassower on behalf of Sam Polur, 112 A.D.2d 119, 492 N.Y.S.2d 608, 609 (1985) (The court stated that "The papers submitted do not demonstrate any basis to conclude that the detention is illegal nor does the petitioner deny the actions taken were in violation of the order of Justice Gammerman....")

Polur also filed a petition for habeas corpus in the federal court, which was dismissed for failure to exhaust state remedies. In the Matter of the Application of Hyman Raffe, George Sassower, and Sam Polur, 85 Civ. 5112 (S.D.N.Y. July 29, 1985) (Lowe, J.)

After Polur's federal habeas corpus petition was dismissed, he filed Polur v. Feltman, Karesh, Major & Farbman, No. 17481/86 (N.Y.Sup.Ct. filed August 9, 1986) (Edwards, J.) ("FKMF I") There, Polur sued FKMF, several FKMF attorneys, including defendant Donald F. Schneider, and Justice Klein alleging they had conspired to have Polur convicted of criminal contempt. On December 7, 1987 Justice Edwards dismissed the complaint as barred by the injunction.

After FKMF I was dismissed, Polur filed Polur v. Feltman, Karesh, Major & Farbman, 87 Civ. 8700 (S.D.N.Y. filed Dec. 9, 1987) (Lowe, J.) ("FKMF II"). There, he sued the same defendants as in FKMF I, alleging that they had violated his civil rights under 42 U.S.C. § 1983 by conspiring to convict him of criminal contempt and to restrain his bank account based on the judgment issued by Diamond. FKMF moved to dismiss and for sanctions under Fed.R.Civ.P. 11 and 28 U.S.C. § 1927.³ Judge Lowe dismissed the complaint on the ground that Polur was collaterally estopped from asserting his claims, and awarded sanctions against him under both Fed.R.Civ.P. 11 and 28 U.S.C. § 1927.⁴FKMF II, (Aug. 25, 1988), slip op. at 1.

SUMMARY OF PREVIOUS LITIGATION

Polur's direct appeal of his conviction for criminal contempt and his various suits alleging a conspiracy to convict him of criminal contempt and to restrain his bank account establish several facts relevant to this action: 1) the validity of Justice Klein's order holding him in criminal contempt; 2) the validity of Referee Diamond's imposition of sanctions against him; and 3) that he is collaterally...