Zappin v. Comfort

ANTHONY ZAPPIN, Plaintiff, v. CLAIRE COMFORT, ROBERT WALLACK, THE WALLACK FIRM, P.C., HARRIET NEWMAN COHEN, COHEN RABIN STINE SCHUMANN LLP, Defendants.

No. 18-CV-01693 (ALC) (OTW)

United States District Court, S.D. New York

August 29, 2022

REPORT & RECOMMENDATION

ONA T WANG, UNITED STATES MAGISTRATE JUDGE

To the Honorable Andrew L. Carter, Jr., United States District Judge:

Plaintiff Anthony Zappin (“Plaintiff”), proceeding pro se, brings claims against Defendants Claire Comfort Robert Wallack, The Wallack Firm, Harriet Newman Cohen, and Cohen Rabin Stine Schumann LLP (collectively, the “Defendants”)^[1] pursuant to 28 U.S.C. § 1332(a)(1) and 28 U.S.C. § 1391. (ECF 168). Plaintiff alleges a litany of unlawful acts by Defendants, including fraud conspiracy to commit fraud, abuse of process, and conspiracy to commit abuse of process. Additionally, Plaintiff alleges that the Wallack and Cohen Defendants engaged in attorney misconduct under N.Y. Judiciary Law § 487.

Before me for Report and Recommendation are Defendants' motions to dismiss Plaintiff's Third Amended Complaint based on a lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6) (ECF 174; 178; 181). The Cohen Defendants further request that the Court enter a pre-filing injunction preventing Plaintiff from filing further actions related to Plaintiff's and Defendant Comfort's contentious child custody litigation in New York State Supreme Court. For the reasons that follow, I recommend that Defendants' Motions to Dismiss and Cohen's request for a pre-filing injunction be GRANTED.

I. Background^[2]

This action arose out of fractious divorce and custody proceedings (the “Custody Action”) between former spouses Anthony Zappin and Claire Comfort in New York County Supreme Court, and subsequent fee and sanctions proceedings. (ECF 168, Third Amended Complaint 1 ¶ 1)^[3] (hereinafter, “TAC”). The New York County Supreme Court in the Custody Action (“the State Trial Court”) found that Plaintiff committed domestic abuse against Comfort and granted her sole custody of their child, as well as child support and an order of protection. Plaintiff was granted supervised visitation. (ECF 174, Defendant Comfort's Notice of Motion to Dismiss, Ex. 1 at 100-101)^[4] (hereinafter, “Comfort Motion.”). Following this decision, Comfort moved for Plaintiff to pay $400,000 in attorney's fees and costs. (Comfort Motion, Ex. 3 at 116).

In its ruling on the motion, the State Trial Court noted that Plaintiff's “abusive litigation tactics” were designed to inflate Comfort's legal fees, and referred the matter to a special referee for a determination on how Comfort's legal fees should be allocated (the “Fee Proceeding”). (Id. at 116-117). After finding that Plaintiff's “egregious” conduct doubled the expense of the Custody Action, the special referee recommended that Plaintiff pay Comfort's legal fees. This decision was affirmed by the State Trial Court. (Id. at 122).

During the course of the Custody Action, Plaintiff was sanctioned $10,000 by the State Trial Court for a “maelstrom of misconduct.” (ECF 183, Wallack Defendants Memo. of Law in Support of Motion to Dismiss at 11-12) (hereinafter, “Wallack Motion”). In its decision disposing of the Custody Action and awarding sole custody of the child to Comfort, the State Trial Court also found that Plaintiff's conduct was “out of line with what is considered acceptable behavior for both attorneys and non-attorneys alike.” (Comfort Motion, Ex. 1 at 5). As a result of these decisions, the New York Attorney Grievance Committee brought sanctions against Plaintiff, ultimately resulting in his disbarment by the Appellate Department, First Division (the “Disciplinary Proceedings”).

Plaintiff has brought numerous federal lawsuits in this district that stem from the above-mentioned adjudications, all of which have been dismissed by various judges. See Zappin v. Daily News, No. 16cv8762 (KPF), 2017 WL 3425765, at *1 (S.D.N.Y. Aug. 2017) (holding that Plaintiff's defamation claim against Daily News is barred by fair and true report privilege); Zappin v. NYP Holdings, No. 16cv8838 (KPF), 2018 WL 1474414, at *1 (S.D.N.Y. Feb. 2018) (holding that the defamation claim against NYP Holdings is barred by fair and true report privilege); Zappin v. Cooper, No. 16cv5985 (KPF), 2018 WL 708369, at *1 (S.D.N.Y. Feb. 2018) (dismissing Plaintiff's complaint on grounds of judicial immunity, sovereign immunity, the Rooker Feldman doctrine, collateral estoppel and failure to state a claim); Zappin v. Cooper, No. 20cv2669 (ER), 2020 WL 4753036 (dismissing Plaintiff's abuse of process claims under claim preclusion and prosecutorial immunity); Zappin v. Collazo, No. 19cv3781 (LGS), 2020 WL 5646496, at*1 (S.D.N.Y. Sep. 2020) (dismissing Plaintiff's complaint on grounds of res judicata and failure to state a claim); Zappin v. Schorr et. al., No. 22cv2034 (ER), (S.D.N.Y. filed Mar. 11, 2022). The case before me is yet another iteration of Plaintiff's past grievances. As alleged in his prior litigations, Plaintiff claims that the findings in the Custody Action, the Fee Proceeding, and the Disciplinary Proceeding were fabricated and fraudulent, the result of a vast conspiracy between Defendants and multiple actors and institutions within the New York State Court system. He accuses Defendants of destroying his access to his child, abusing the state courts, and causing him personal, financial, and reputational ruin. (TAC 60 ¶¶ 116-117; 63 ¶ 126; 67 ¶¶ 149-150).

A. Custody proceedings in the District of Columbia

Plaintiff and Comfort were married in May 2013. Their child was born in October 2013. (TAC 4 ¶ 10). Weeks after the child was born, Comfort and her father brought the child to Tacoma, Washington, without Plaintiff's consent. (Id.). Plaintiff subsequently filed a petition for custody and a motion for the emergency return of the child in the Superior Court for the District of Columbia (“DC Superior Court”). (Id. 4 ¶ 12). Within this complaint, Plaintiff introduced allegations of domestic violence committed by Comfort against him. (Id.) After the hearing, the presiding judge issued an order directing Comfort to return with the child to Washington, D.C. (Id. 5 ¶ 13). In response, Comfort filed documents raising allegations of domestic violence committed by Plaintiff against her during and after her pregnancy. (Id. 5 ¶ 14).

A custody and visitation hearing pending litigation initially scheduled for November 20, 2013, was adjourned to March 2014 after Comfort filed a second temporary order of protection and Plaintiff requested time to gather evidence to respond. (TAC 5 ¶ 15). On that same date, Plaintiff and Comfort entered into a “Consent Order,” in which Plaintiff agreed to have no contact with Comfort and to have supervised visitations with his child. Zappin v. Comfort, Index No. 301568-2014, 26 N.Y.S.3d 217, at *2 (N.Y. Sup. Ct. Sept. 18, 2015).^[5]

B. The Custody Action in New York State Supreme Court

a) The Custody Action proceedings before Justice Kaplan

In February 2014, Comfort relocated with the child to New York City and the Washington D.C. court relinquished its family jurisdiction to New York State. (TAC 6 ¶16). At the same time, Plaintiff filed for divorce before the State Trial Court, initiating the Custody Action. (Id. 7 ¶ 18). The suit was assigned to Justice Kaplan. (Id.). During these proceedings, Comfort was represented by Wallack and his firm. (Id.)

In April 2014, Plaintiff stipulated to continued supervised visitation. Zappin v. Comfort, 26 N.Y.S.3d at *2. In the TAC, however, Plaintiff asserts that between April and July 2014, he requested a pendente lite hearing on at least four occasions to review the custody arrangements and revoke supervised visitation, and that these requests were denied.

(TAC 7 ¶ 19). Plaintiff alleges that these decisions were made off the record, which precluded him from appealing. (Id.). Plaintiff alleges that he sought reconsideration of the supervised visitation arrangement because its monthly costs exceeded his salary. (Id.) Plaintiff further alleges that supervised visitation was part of a strategy by Defendants to cause him financial harm and rob him of the ability to visit his child. (Id.). The State Trial Court found, however, that despite Plaintiff's repeated charges that he was denied a prompt hearing to determine his visitation rights, “the record shows that he acted in a manner actually designed to prevent such a hearing from happening.” Zappin v Comfort, 26 N.Y.S.3d at *2.

Plaintiff also alleges that due to the financial strain caused by the visitations, he could no longer afford legal representation, and accordingly proceeded pro se. (TAC 8 ¶ 20).^[6] The State Trial Court then appointed Harriet Cohen as Attorney for the Child. (Id. ¶ 21). Plaintiff alleges that Cohen was unqualified to be the Attorney for the Child, and that her appointment was a kickback for her firm's campaign donations to Justice Kaplan. (Id.).

In October 2014, Plaintiff filed a motion to disqualify Cohen as Attorney for the Child, accusing her of harassing medical providers, failing to serve subpoenas on Comfort's medical providers, fabricating allegations and making misrepresentations, violating court orders, and other misconduct. (TAC 9 ¶ 23). Pending these allegations, Justice Kaplan “stayed” the case, an action which Plaintiff alleges was an effort to frustrate his request for a pendente lite child custody hearing. (Id. 9-10 ¶¶ 23-24).

At this stage of the proceedings, Plaintiff began to express his frustration with the State Trial Court on the Internet. (Id. 10 ¶ 25). In the final months of 2014 Plaintiff sought the help of David Evan Schorr, an attorney ...