Zappin v. Comfort
| Decision Date | 18 September 2015 |
| Docket Number | No. 301568/14.,301568/14. |
| Citation | 26 N.Y.S.3d 217 (Table) |
| Parties | Anthony ZAPPIN, Plaintiff, v. Claire COMFORT, Defendant. |
| Court | New York Supreme Court |
Anthony Zappin, Esq, New York, for the Plaintiff.
Robert Wallack, Esq., The Wallack Frim, P.C. New York, for the Defendant.
Harriet N. Cohen, Esq., Cohen Rabin Stine Schumann, LLP, New York, for the Child.
As required by CPLR 2219(a), the following is a recitation of the papers considered in the review of Motion Sequence 19:(1) Attorney for the Child's Order to Show Cause, Affirmation, Exhibits; (2) Plaintiff's Affidavit in Opposition, Exhibits; (3) Attorney for the Child's Reply Affirmation, Exhibits; (4) Plaintiff's Sur–Reply Affidavit, Exhibits.
As required by CPLR 2219(a), the following is a recitation of the papers considered in the review of Motion Sequence 21:(1) Attorney for the Child's Order to Show Cause, Affirmation, Exhibits; (2) Plaintiff's Notice of Cross–Motion, Affidavit, Exhibits; (3) Plaintiff's Affidavit in Opposition and Exhibits; (4) Plaintiff's Supplemental Affidavit; (5) Attorney for the Child's Reply Affirmation; (6) Plaintiff's Sur–Reply Affidavit, Exhibits.
More often than not, it is a problem when lawyers choose to represent themselves in their own lawsuits. As no less an authority than the United States Supreme Court has written, "[t]he adage that a lawyer who represents himself has a fool for a client' is the product of years of experience by seasoned litigators" (Kay v. Ehrler, 499 U.S. 432, 437 [1991] ). In the words of the High Court, an attorney appearing pro se is "deprived of the judgment of an independent third party in framing the theory of the case, evaluating alternative methods of presenting the evidence, cross-examining hostile witnesses, formulating legal arguments, and making sure that reason, rather than emotion, dictates the proper tactical response to unforseen developments in the court room" (id. ).
Despite the Supreme Court's admonition, it is all too common for spouses who are lawyers to represent themselves in divorce proceedings. Because matrimonial practice is a specialized area of the law, with its own rules and ways, most lawyers who attempt to proceed pro se find themselves ill-equipped to competently handle the procedural and/or substantive aspects of their divorce cases on their own. And because a contested divorce is almost guaranteed to be emotionally charged, a self-represented lawyer may be hard-pressed to summon the level of rational thought and independent judgment that is required of a capable litigator.
This divorce case, unfortunately, presents a situation where an attorney has used his pro se status to inflict harm on his wife, their child and the court, and in so doing has caused significant harm to himself. Plaintiff, Anthony Zappin, an attorney admitted to practice in the courts of the State of New York, is a lawyer at a major law firm where he specializes in patent infringement litigation. He has chosen to be his own attorney in an action where his access to the parties' infant son is a central issue and where there are allegations of domestic violence.1 Rather than act in a constructive manner, plaintiff has done everything in his power to undermine the legal process and use his law license as a tool to threaten, bully, and intimidate. As will be discussed below in further detail, his ill-advised behavior seriously calls into question his fitness to practice law. It is also, according to defendant and the attorney for the child, indicative of a personality that makes plaintiff incapable of properly parenting the parties' child.
As a direct result of plaintiff's conduct in this case, the attorney for the child, Harriet N. Cohen, Esq., (the "AFC") has been forced to bring the two motions that are now before the court. The first motion (Motion Sequence 19) is to quash a subpoena served on her by plaintiff. The second motion (Motion Sequence 21) is for permission to communicate with the New York State Office of Professional Medical Conduct (the "OPMC") and to release court documents in connection with a disciplinary complaint plaintiff filed with the OPMC against the psychiatrist she retained as an expert witness, as well as to require plaintiff to bear responsibility for the legal fees her expert incurs and financial losses suffered with regard to plaintiff's complaint. The AFC also asks the court to impose financial sanctions against plaintiff pursuant to 22 NYCRR 130–1.1 as a result of his actions with respect to her expert and his overall misconduct throughout the pendency of the divorce action.
Plaintiff has cross-moved in Motion Sequence 21 to have Ms. Cohen disqualified as the AFC, relief he has sought a number of times prior. In the event she is not disqualified, he seeks to be able to call Ms. Cohen as a witness at trial and be permitted to cross-examine her. Additionally, plaintiff cross-moves to renew his application for leave to take the child to a hospital for a developmental assessment. Lastly, plaintiff seeks to vacate this court's July 22, 2015 order that granted the AFC a money judgment against him for fees that are due her and he has refused to pay.
The parties were married in 2013 and have a child together, a boy, who is soon to be two-years-old. Since their son's birth, the parties have engaged themselves in what has seemingly been perpetual litigation, initially in the courts of the District of Columbia and now in New York. Throughout most of the litigation, plaintiff has represented himself, while defendant, Claire Comfort, who is also a patent attorney at a major law firm, has retained counsel.
Plaintiff's difficulties as an attorney pro se began in the Superior Court of the District of Columbia, where the parties entered into a "Consent Order" on November 20, 2013. By way of the Consent Order, plaintiff agreed to have no contact with defendant and to have supervised visitation as a condition for access to his son. In a decision dated April 7, 2014, Superior Court Judge Anthony Epstein found that a motion brought by plaintiff was "replete with intemperate and uncivil language about which the Court previously cautioned him." He also stated that "much of the matter in [plaintiff's] motion is redundant, immaterial, impertinent, or scandalous." In the decision, Judge Epstein went on to note that plaintiff "had discharged two sets of attorneys in this case—attorneys who have represented him more civilly and, from this Court's perspective, more effectively than he has represented himself."
Not only was plaintiff unreceptive to Judge Epstein's suggestion that he retain counsel, but he was aggressively hostile to the judge's criticism of his conduct as a self-represented attorney. Judge Epstein, in a decision dated May 28, 2014 in which he denied plaintiff's motion to reconsider his prior ruling, referred to an incident where he believed plaintiff had engaged in inappropriate conduct towards him. He described the incident as follows:
On the front of the copy of the reconsideration motion that Mr. Zappin provided to chambers, a handwritten note is attached that states, The note is unsigned, but Mr. Zappin, who now represents himself in this case and provided the document, appears to be the person who wrote and attached the note.
Plaintiff's improper behavior towards the court did not cease once the case was no longer before Judge Epstein. On February 11, 2014, after both parties had moved to New York, plaintiff commenced this action for divorce in New York County Supreme Court. Subsequently, jurisdiction over custody and visitation issues was transferred from the District of Columbia to this court, where, by a stipulation dated April 2, 2014, plaintiff agreed that his access to the child would continue to be supervised. On March 3, 2015, Justice Deborah A. Kaplan, the judge who presided over the case until it was transferred to me, made certain rulings on the record. After she had finished, the following colloquy between Justice Kaplan and plaintiff took place in open court:
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