Zappin v. Cooper

• Decision Date: 02 February 2018
• Docket Number: 16 Civ. 5985 (KPF)
• Parties: ANTHONY ZAPPIN, Plaintiff, v. MATTHEW F. COOPER, a Justice of the Supreme Court of the State of New York, in his individual and personal capacity, Defendant.
• Court: U.S. District Court — Southern District of New York

ANTHONY ZAPPIN, Plaintiff, v. MATTHEW F. COOPER,a Justice of the Supreme Court of the State of New York,in his individual and personal capacity, Defendant.

16 Civ. 5985 (KPF)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

February 2, 2018

OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:

This is one in a series of federal actions that Plaintiff Anthony Zappin¹ has filed against individuals and entities connected to his divorce proceedings in New York State Supreme Court. He filed two lawsuits against news companies for their allegedly defamatory coverage of those proceedings; this Court dismissed one of those suits with prejudice last year, see Zappin v. Daily News L.P., No. 16 Civ. 8762 (KPF), 2017 WL 3425765, at *15 (S.D.N.Y. Aug. 9, 2017) ("Zappin Federal I"), and dismisses the second one today, see Zappin v. NYP Holdings, Inc., et al., No. 16 Civ. 8838 (KPF) ("Zappin Federal II"). Plaintiff also recently filed a fourth lawsuit, this time against several judges; individuals involved with the attorney disciplinary process in the New York State SupremeCourt Appellate Division, First Department; and the New York County District Attorney. See Zappin v. Collazo, et al., No. 17 Civ. 8837 (KPF).

The instant suit names as Defendant Matthew F. Cooper, the New York County Supreme Court Justice who presided over most of Plaintiff's divorce proceedings. Plaintiff here seeks to hold Defendant liable for transmitting to purportedly unauthorized recipients a judicial opinion that, Plaintiff alleges, contains false, malicious, or defamatory statements about Plaintiff. In his First Amended Complaint (the "FAC"), Plaintiff asserts claims of defamation, intentional infliction of emotional distress, and tortious interference with prospective economic advantage, among others. Defendant moves to dismiss the FAC under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on multiple grounds, including absolute judicial immunity, sovereign immunity, the Rooker-Feldman doctrine, collateral estoppel, and failure to state a claim.

At first blush, Defendant's alleged conduct would appear to fit within the ambit of judicial immunity, and were this suit against a federal judge, such might be the case. But New York law governs the substantive judicial immunity inquiry here, and a relic of that body of law appears to leave state judges briefly exposed for the very particular conduct at issue. Still, because Plaintiff's claims would necessarily require relitigation of material and decisive factual issues previously adjudicated in state court, this Court grants Defendant's motion and dismisses the FAC with prejudice on collateral estoppel grounds.

BACKGROUND²

A. Factual Background

The Court assumes familiarity with its decision in Plaintiff's earlier suit against Daily News L.P., see Zappin Federal I, 2017 WL 3425765, at *1-3, which described some of the underlying factual and procedural history of Plaintiff's divorce proceedings. The New York chapter of those proceedings began in February 2014, when Plaintiff initiated the divorce action Zappin v. Comfort in New York County Supreme Court (the "Divorce Action"). (Sanctions Decision 5). Defendant began presiding over that case after reassignment in July 2015 from a different New York judge. (FAC ¶ 12).

Plaintiff alleges that from the first hearing before Defendant (or the "Trial Court"), in July 2015, through multiple orders and proceedings, Defendant engaged in personal attacks on Plaintiff that "impugned [Plaintiff's] characterand questioned his professional competency [as an attorney]." (Id. at ¶¶ 14-16).³ According to Plaintiff, Defendant's September 18, 2015 decision, which resolved several motions and ultimately imposed sanctions on Plaintiff (referred to in this Opinion, somewhat imprecisely, as the "Sanctions Decision" or the "Decision"), was "nothing more than a publicity stunt" that was "designed to summarily destroy Plaintiff's reputation, employment prospects and legal career[.]" (Id. at ¶¶ 3-4).

1. The Trial Court's Sanctions Decision

Plaintiff alleges that the Sanctions Decision was "instigated" by the court-appointed attorney for Plaintiff's child (the "AFC"), who filed two motions that are relevant here. (FAC ¶ 17). One was to quash a subpoena that Plaintiff had served on her prior to the July 2015 hearing seeking, inter alia, information about the amount of fees billed to Plaintiff's wife, whom Plaintiff suspected had been under-billed to his detriment. (Id.). The second motion sought several things. First, the AFC moved for permission to communicate with, and release certain court documents to, the New York State Office of Professional Medical Conduct (the "OPMC") regarding a confidentialdisciplinary complaint that Plaintiff had filed against the AFC's retained medical expert witness. (Sanctions Decision 3; FAC ¶ 18). The motion also sought any attorneys' fees and damages that the expert may have incurred as a result of Plaintiff's OPMC complaint. (Sanctions Decision 3). Finally, the AFC asked the Trial Court to impose financial sanctions on Plaintiff "as a result of his actions with respect to her expert and his overall misconduct throughout the pendency of the [D]ivorce [A]ction." (Id.). Plaintiff points out, and the Sanctions Decision acknowledges, that the AFC requested sanctions in her reply papers. (See FAC ¶ 19; Sanctions Decision 19).

Of note, the Sanctions Decision resolved Plaintiff's cross-motions seeking: (i) to have the AFC disqualified; (ii) permission to call as a witness and cross-examine the AFC at trial; (iii) to renew Plaintiff's application for leave to take his child to a hospital for a developmental assessment; and (iv) to vacate the Trial Court's July 22, 2015 order granting the AFC a money judgment against Plaintiff for outstanding fees. (Sanctions Decision 3-4). In the course of resolving those motions, the Sanctions Decision made a series of factual findings addressing Plaintiff's misconduct throughout the Divorce Action, including misconduct directed towards Defendant, his predecessor judge, opposing counsel, the AFC, and the medical expert witness. The details of those findings are discussed as appropriate throughout this Opinion. Broadly speaking, the Decision found that Plaintiff had "done everything in his power to undermine the legal process and use his law license as a tool to threaten, bully, and intimidate," behavior that "call[ed] into question [Plaintiff's] fitness topractice law." (Sanctions Decision 3). The Trial Court likewise found that Plaintiff's "tactics, and the language he employ[ed] in his motion papers, ha[d] grown [ever more] extreme and out of step with what is appropriate and permissible advocacy by an attorney, even one who is representing himself." (Id. at 9; see id. (describing behavior as a "maelstrom of misconduct")).

Moreover, while the Trial Court found Plaintiff's filing of the OPMC complaint to be particularly egregious (see Sanctions Decision 18), it expressly considered "the circumstances under which the [OPMC conduct] took place" pursuant to the relevant judicial sanctions provision, 22 NYCRR § 130-1.1 (id. at 21). In this respect, the Trial Court observed:

As should be obvious from the recitation of the history of this case, [P]laintiff's misconduct exhibited with regard to the OPMC complaint is not an isolated incident. Regrettably, it is but one instance in a pattern of improper behavior. Although the hope was that [P]laintiff would heed the court's admonitions and represent himself according to the dictates of his profession, that has not happened.

Under these circumstances, where warnings have had no effect on [P]laintiff's conduct, it is incumbent — for the integrity of the judicial process, as well as for the protection of the other litigants and the child — that penalties be imposed.

(Id. (emphasis added)).

Ultimately, the Sanctions Decision (i) quashed Plaintiff's subpoena on the AFC; (ii) denied as moot the AFC's motion for relief concerning Plaintiff's OPMC complaint; (iii) denied Plaintiff's cross-motion in full; and (iv) imposed sanctions on Plaintiff in the amount of $10,000, with half due to the AFC for attorney'sfees incurred as a result of Plaintiff's misconduct and half due to New York's Lawyer's Fund for Client Protection. (Sanctions Decision 26).

2. The First Department's Affirmance of the Sanctions Decision

Plaintiff appealed the Trial Court's Sanctions Decision to the Appellate Division of the First Department, which unanimously affirmed the Decision. See Zappin v. Comfort, 49 N.Y.S.3d 6, 6 (1st Dep't 2017) ("Zappin State I"). Specifically, the appeals court described the Trial Court's Decision as "detailed" and "amply supported by the record." Id. The First Department concluded:

The record establishes that [Plaintiff] engaged in unprofessional, outrageous and malicious conduct on multiple occasions, most recently by filing the bad faith disciplinary complaint against the attorney for the child's (AFC) medical expert with the Department of Health's Office of Professional Medical Conduct. Under the circumstances, particularly where [Plaintiff] has exhibited a pattern of bad faith conduct throughout the proceedings despite repeated warnings not to do so, the sanctions imposed by Supreme Court were entirely proper.

Id. at 6-7. The First Department also rejected Plaintiff's argument that Defendant had imposed sanctions without fair notice:

We have considered each of [Plaintiff's] procedural arguments, including that he was entitled to a hearing because he did not have fair notice that sanctions were being considered against him, and find them unavailing. [Plaintiff] had fair notice that sanctions were being considered, as the AFC requested sanctions in both her moving affirmation⁴ and again in her replypapers on the motion, but [Plaintiff] did not address the AFC's request either in opposition or in surreply. [Plaintiff] was also warned repeatedly throughout the proceedings that

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