Zappin v. Cooper
| Decision Date | 31 March 2022 |
| Docket Number | 20 Civ. 2669 (ER) |
| Parties | ANTHONY ZAPPIN, Plaintiff, v. MATTHEW F. COOPER; LAUREN LIEBHAUSER; KEVIN M. DOYLE; HANNAH YU; and JANE DOE, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Anthony Zappin brings this action against Justice Matthew Cooper[1] alleging abuse of process and retaliation. See Docs. 1, 33.[2] By way of background, the instant action is just one of sixteen suits Zappin has filed-in state and federal court-against Justice Cooper, New York State, and other state officials arising out of his divorce, disbarment and an alleged encounter with Justice Cooper on a city sidewalk that resulted in Zappin's prosecution for filing a false police report. See Docs. 69-3, 112. Zappin has named Justice Cooper as a defendant in ten of these actions. See Docs. 69-3, 112.
Before the Court are Justice Cooper's motion for a filing injunction, and Zappin's motion for leave to file a second amended complaint. For the reasons set forth below Justice Cooper's motion is GRANTED and Zappin's motion is DENIED.
Zappin, a former attorney and member of the bars of New York, West Virginia, and the District of Columbia, filed for divorce from his then-spouse Claire K. Comfort and for custody of their child in 2014. It appears to be undisputed that the proceedings can safely be described as acrimonious and were covered extensively by New York City tabloids.[3] Justice Cooper presided over substantial portions of Zappin's divorce action in Supreme Court, New York County. Doc. 70 at 2. In that action, Justice Cooper imposed a $10, 000 sanction on Zappin for a “maelstrom of misconduct.” See Zappin v. Comfort, 26 N.Y.S.3d 217, 2015 WL 5511519, at *5 (NY Sup. Ct. 2015), aff'd, 49 N.Y.S.3d 6 (N.Y.App.Div. 2017). Among other reasons, Zappin was sanctioned for attempting to subpoena documents from the case file maintained by the attorney for his child and for filing a baseless complaint with the Office of Professional Medical Conduct against a psychiatrist retained as an expert on his child's behalf. Id. at *8-9. In his sanctions decision, Justice Cooper held that these actions were part of Zappin's ongoing efforts “to undermine the legal process and use his law license as a tool to threaten, bully, and intimidate, ” and that this behavior “call[ed] into question his fitness to practice law.” Id. at *1. The Appellate Division, First Department, affirmed Justice Cooper's sanctions decision as “entirely proper” and “amply supported by the record, ” and rejected Zappin's claim that he was denied a full and fair opportunity to oppose the sanction. Zappin, 49 N.Y.S.3d at 7.
Justice Cooper subsequently presided over a child custody trial in the divorce action. On February 29, 2016, he issued an unpublished decision resolving the custody dispute. The custody decision was incorporated into a final judgment of divorce, dated August 17, 2016, which awarded Comfort sole custody of the child, granted Zappin supervised visitation, granted a five-year stay-away order of protection in Comfort's favor, and required Zappin to pay child support. See Zappin v. Comfort, 65 N.Y.S.3d 30 (N.Y. App.Div. 2017) (affirming custody decision), appeal dismissed, 102 N.E.3d 1056 (N.Y. 2018).
On appeal, the custody decision was affirmed in all respects. Id. The First Department held there was a “sound and substantial basis” to award Comfort sole custody, based in part on Justice Cooper's findings that Zappin had “committed acts of domestic violence against [Comfort], both during her pregnancy with the child and after the child was born, rendering joint custody impossible.” Id. at 32. The First Department also held there was a “sound and substantial basis” to grant Zappin supervised visitation, including the “evidence that [he] had physically and verbally harmed the child's mother, engaged in abusive litigation tactics, and lacked the emotional restraint and personality to look after the child's best interests.” Id.
With Comfort's claim for attorneys' fees the only remaining issue in the divorce action, Justice Cooper recused himself, noting that in the interim Zappin had filed three federal lawsuits against him; filed two complaints against him with the New York State Commission on Judicial Conduct, both of which were dismissed as being without merit; and created at least two websites aimed at “smearing [him].” Doc. 70 at 3 (internal citations omitted). Justice Cooper also noted Zappin's “venomous conduct” in sending a “disturbing” email to Justice Cooper's son and posting a fake online review of a course his son teaches, which stated in part that the instructor's “father is corrupt New York mobster Judge Matthew Cooper.” Id. (internal citations omitted).
Based on Justice Cooper's findings, the Attorney Grievance Committee (“AGC”) of the Appellate Division, First Department, charged Zappin with professional misconduct. The charges were approved by Ernest J. Collazo, an attorney in private practice who served as volunteer chairman of the AGC, and were prosecuted by staff attorney Kevin M. Doyle under the supervision of chief attorney Jorge Dopico. On October 17, 2016, the First Department found that Zappin had violated New York Rules of Professional Conduct §§ 3.1, 3.3(a)(1), 3.3(a)(3), 3.3(f)(2), 8.4(c), 8.4(d), and 8.4(h). See Matter of Zappin, 73 N.Y.S.3d 182, 186 (NY. App. Div 2018) (citing 22 NYCRR 1240.8 [b] [2]). The court based its findings of misconduct on Justice Cooper's determinations that Zappin:
had repeatedly perpetrated acts of domestic violence against his wife; had testified falsely at a custody trial; had knowingly introduced falsified evidence during the proceedings in the form of altered text messages; had presented misleading testimony through his expert witnesses; had … engaged in acts that repeatedly demonstrated disrespect for the court and counsel, by, inter alia, flouting the judicial directives of three judges …, setting up a fake website about the attorney for the child by registering her name as a domain name and posting derogatory messages about her on it, and baselessly filing a disciplinary complaint against a court-appointed psychiatric expert witness. Additionally, the Supreme Court found that [Plaintiff] had sent text messages to his wife, an attorney, threatening her with loss of her license to practice law and professional ruin; had made grossly offensive remarks during cell phone conversations with his then three-month-old son in which he baselessly accused his father-in-law of being a child sexual abuser who could harm the child; had engaged in frivolous and abusive litigation against his wife, her parents, and her attorneys; and had attempted to publicly defame the attorney for the child.
The First Department referred the disciplinary matter to a referee to recommend an appropriate sanction. Id. at 187. After a hearing, the referee recommended disbarment, citing Zappin's “lack of remorse and evident lack of respect for the judicial process [as] serious aggravating factors.” Id. at 184-8. On March 8, 2019, the First Department ordered Zappin disbarred “to protect the public, maintain the honor and integrity of the profession, or deter others from committing similar misconduct[.]” Id. at 188. That decision held that disbarment was amply justified because Zappin had had a full and fair opportunity to litigate the findings made in the custody trial. Id. Based on Zappin's disbarment in New York, he was also disbarred in West Virginia on February 18, 2021, and in the District of Columbia on March 21, 2019. See Doc. 69-2.
Zappin alleges that on November 2, 2016, while he was walking in lower Manhattan, he passed Justice Cooper and, as they passed, Justice Cooper approached Zappin and spat on him (“the November 2 incident”). Doc. 33 ¶ 14. That day, Zappin filed a police report at the New York Police Department's First Precinct. Id. ¶ 17. Zappin alleges he “never once requested that the NYPD or the District Attorney's Office prosecute [Justice] Cooper, ” but instead simply wanted to “document what happened.” Id. ¶ 18. At the time of the alleged incident, Justice Cooper was still presiding over the divorce action and was considering several post-judgment motions. Doc. 70 at 15; Doc. 33 ¶¶ 26-27.
After an investigation of the November 2 incident by Lauren Liebhauser, investigator of the Manhattan District Attorney's Office, Zappin was arrested on March 28, 2017, and arraigned on March 29, 2017, in New York Criminal Court on a charge of falsely reporting an incident in the third degree in violation of N.Y Penal Law § 240.50.3(a), a Class A misdemeanor.[4] See Docs. 43-10, 43-11. On September 19, 2017, Zappin pleaded guilty to one count of disorderly conduct under N.Y. Penal Law § 240.20(1), a violation, in satisfaction of the charge. See Doc. 43-13.
Since the issuance of the sanctions decision in 2015, Zappin has filed numerous actions challenging Justice Cooper's rulings in the divorce action, contesting his disbarment, and accusing Justice Cooper of wrongdoing in connection with the November 2 incident and Zappin's resulting arrest and criminal prosecution. Specifically, Zappin has filed eight civil actions in the Southern District of New York, naming Justice Cooper as a defendant in six of them, and also has filed one civil action in the Southern District of West Virginia.
In addition to the federal actions, Zappin has also filed five actions arising out of the same events in the New York Supreme Court, one in the New York State Court of Claims, and one in West Virginia state court. Zappin named Justice Cooper as a...
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