5\

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SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT:

HON. PAULWQOTEN
Justice

PART

JAMES COURI,
Plalntfff,

INDEX NO.

107240/04

- against MOTION 8EQ. NO.

OOP

JOHN SIEBERT and JOHN W SIEBERT, MD.PC.,

Defendants.

The following papers, numbered 1 to 4, were read on this motion by the plaintiff to vacate a prior
Order of this Court

^
PAPERS NUMBERED

Notice of Motion/ Order to Show CauseAffidavits Exhibits

Answering Affidavits Exhibits |

L E"P
Replying Affidavits(Reply Memo)_L

Cross-Motion: Yes

LFNo

JAM 2 7 ZOtt

OOWnYOSSSf^

Before the Court Is a motiofpbi^he^

Recommendation of Judicial Hearing Officer Ira Gammerman(JHO Gammermmi)dated
December 15,2014 and entered on February 10,2015. Also before the Court Is a cross-

motion by the plaintiff, dated April 6,2015,to reject the Report of JHO Gammerman claiming
"Perjury, Fraud on the Court and forging and planting of Files In Motion Sequence #67 by
Joseph Burke,for an Order (1) Rejecting entirely the illegal and fraudulent Inquest Order

grounded on Fraud, perjury and fraudulent Burke 4-1-15 Motion In violation of Beeler injunction
mandating 'permission' and violations of mandates of Inquests [sic], conducted by default due
to my Illness.(2)Vacating the Decision of 12-24-13, on the additional grounds of fraud on the

Court, Perjured order, collusion and ghostwriting by Burke of an illegally [sic] Decision belled by
evidence.(3)disqualification of Joseph M. Burke Esq.[Burke]on the grounds offraud, perjury
and that he will be called as a witness testimony [sic] detrimental to Sleberf (Plaintiff Notice of

Page 1 of 10

Cross-Motion). The defendant filed a reply affidavit on April 8,2015.

BACKGROUND

By an Order dated December 24,2013 and filed on December 26,2013,this Court .

directed the defendants to file the Note of Issue on or before January 28,2014, and upon that

filing the Court stated that the Clerk shall set a date upon which an inquest will be held

assessing damages, if any, against plaintiff on defendants' counterclaims, the only remaining
issue In this case.^

The Court, also in the December 24,2013 Order (1)granted defendants' motion to

strike and dismiss plaintifTs reply to defendants' counterclaims;(2)deemed plaintiff a vexatious

litigator and enjoined plaintifffrom:(a)asserting his medical or physical condition, or medical

treatment thereof, or(b)asserting his unavailability being out of state as a reason for non-

appearance or non-participation in court procedure before this Court or Special Referee or any

Court-appointee, and (c) re-issued the Orders by Justice Harold Beeler, dated February 17,
2005, and his order dated December 12,2005, in which all parties were enjoined from taking

any further action In this matter including, filing any motions, without prior leave of this Court.
The plaintiff appealed the December 24,2013 decision. Subsequently, this Court denied

plaintiffs request for leave to file a motion to reargue this Court Order dated December 24,
2013 which resolved Motion Sequence 067(see this Court's Interim Order, dated January 17,
2014 and filed on January 22,2014).

On February 26,2014,the Court held a mandatory Compliance Conference in Part 7,

Courtroom 341,60 Centre Street, New York for this case and the duplicate case Couri v

Siebert, pending under Index No. 113512/2008(2006 Case). Despite having notice of the
'Plaintiffs complaint and counterclaims were dismissed by the Appellate Division, First

Department in February 2008, wherein the Appellate Division granted the defendants' motion to strike the
claims based upon plaintiffs continued failure to comply wth discovery demands for his tax retums, but
the defendants' counterclaim remained (see Court v Siebert,48 ADSd 370[1st Dept 2008]).
Page 2 of 10

conference the plaintiff, pro se, chose not to appear, without good cause for his nonappearance, and chose not to send an attorney on his behalf. The defendants appeared at the

conference and the Court proceeded to conference the cases. On February 27,2014,this

Court received an incomplete draft copy of a United States Bankruptcy Court filing by facsimile
from the plaintiff, without valid proof of sendee to the defendants, which vioiates this Court's

Rules. Nonetheless, given the seriousness of such a filing, this Court contacted the United
States Bankruptcy Court and discovered that on Friday, February 28,2014, plaintiff filed a
Chapter 7 Bankruptcy Petition in The United States Bankruptcy Court, Central District of
Caiifomia, Riverside Division, seeking to discharge the debt in this case. The Bankruptcy
Petition filing automatically stayed this State Court proceeding, pursuant to 11 U.S.C. 362
{see Case No.6:14-bk-12555-WJ).

On July..15,2014, the United States Bankruptcy Court in Caiifomia granted the

defendants' motion to vacate the automatic stay, pursuant to 11 U.S.C.362. On July 24,

2014,the plaintiff then filed a Notice of Removal for removal of the herein case(2004 Case)
(Case No.6:14-bk- 12555-WJ, Adv. Proceeding 6:14-ap-01192-WJ)and the 2008 Case(Case
No. 6:14-bk- 12555-WJ, Adv. Proceeding 6:14-ap-01190-WJ). This Court received Copies of
the Notices to Remove on July 29,2014, which stayed this Courtfrom proceeding.

On August 21,2014,the Honorable Wayne Johnson, United States Bankruptcy Court

Judge, held a hearing on the plaintiffs application, including the defendant's opposition, and
granted the defendants' motion to remand both Couricases back to the New York State

Supreme Court.-r On Septemt)er 2,2014, Judge Johnson also dismissed the plaintiffs Chapter

. 7 Bankruptcy Petition, BK-12555-WJ. The Bankruptcy Court Orders granting the defendants'
motion to remand the cases to the New York State Supreme Court were entered in this Court

on October 3,2014(Index No. 113512/2008)and October 14,2014(Index No. 107240/2004).

I

On September 18,2014, Judge Johnson also terminated and closed the plaintiffs Removal
Page 3of 10

actions(Case No.6:14-bk-12555-WJ, Proceeding 6;14-ap-01192-WJ and Adv. Proceeding

6:14-ap-01190-WJ).

Subsequently, on December 15,2014, JHO Gammerman held an inquest, and issued

his report on the record on that day. At the inquest the defendants'counsel appeared in-person
and the plaintiff, pro se, appeared by telephone. The transcript reflects that at some point near

the beginning of the inquest, plaintiff hung up the telephone and refused to participate in the

inquest, claiming the actions of JHO Gammerman were fraudulent and that he lacked notice.
However, as plaintiff had filed an appeal of the December 24,2013 Order which set this matter

down for an inquest, and having also requested leave to reargue the December 24,2013
Order, it is evident that plaintiff was aware that the inquest was pending (see Court interim

order dated January 17,2014 and entered on January 24,2014). Moreover,the transcript from
the inquest indicates that JHO Gammerman tried to inquire as to whether plaintiff had sought
an adjournment or stay of the inquest and also offered plaintiff an adjournment, but such Inquiry
was ignored or refused (see December 15,2014 Transcript p. 3, line 12 and p. 5, line 3). Thus,
on December 15,2014, after taking defendants'sworn testimony, JHO Gammerman

recommended to this Court Judgment in favor of the defendants'on their counterclaims in the
amount of $7,110,532.00, with interestfrom August 18,2003(see December 15,2014
Transcript p,16, line 7,to p. 17 line 16).

Thereafter, in an interim Order dated and entered on January 8,2015, this Court

granted the parties leave to file a motion to confirm or reject JHO Gammerman's report. On

February 10,2015, JHO Gammerman So-Ordered the transcript of the inquest proceeding and
submitted the Report and Recommendation to the County Clerk's Office,

The defendants secured a copy of JHO Gammerman's Report and Recommendation on

March 25,2015 and moved to confirm the Report by notice of motion dated April 1,2015. In

their motion papers, defendants attached as exhibits, inter aHa, the Referee's Report Transcript,
Page 4 of 10

the amended verified complaint, defendants' amended answer with counterclaims, a copy of the
Appellate Division, First Department decision in Couri v Siebert, 48 AD3d 370[1st Dept 2008], a
copy of this Court's Order December 24,2013, and a copy of the Note of Issue, filed on

January 27,2014. The plaintiff files a cross-motion by the plaintiff, dated April 6,2015,to

reject the Report of JHO Gammerman claiming "Perjury, Fraud on the Court and forging and
planting of RIes in Motion Sequence#67 by Joseph Burke,for an Order (1) Rejecting entirely
the illegal and fraudulent Inquest Order grounded on Fraud, perjury and fraudulent Burke 4-1-

15 Motion in violation of Beeler Injunction mandating 'permission'and violations of mandates of

Inquests [sic], conducted by default due to my illness.(2)Vacating the Decision of 12-24-13, on
the add'rtional grounds offraud on the Court, Perjured order, collusion and ghostwriting by

Burke of an illegally [sic] Decision belied by evidence.(3)disqualificatton of Joseph M. Burke

Esq.[Burke]on the grounds of fraud, perjury and that he will be called as a witness testimony
[sic] detrimental to Sleberf (Plaintiff Notice of Cross-Motion). The defendant filed a reply
affidavit.

DISCUSSION

"It is well,settled that the report of a Special Referee shall be confirmed whenever the
findings contained therein are supported by the record and the Special Referee has clearly
defined the issues and resolved matters of credibility" {Steingart v Hoffman,80 AD3d 444,445

[1st Dept 2011], citing Nagerv Panadis, 238 AD2d 135,135-136[1st Dept 1997]; see also
Melnitzky v Uribe, 33 AD3d 373[1st Dept 2006]; Kaplan v Biny, 209 AD2d 248[1st Dept 1994];

Namervl52-5^56 W. 15th St ReaAy Co/p.,108 AD2d 705[1st Dept 1985]iv dismissed sub
,nom Walker v SanVAndrea,72 NY2d 954[1988]). "The Special Referee is considered to be in
the best position to determine the issues presented"{Nagerv Panadis, 238 AD2d at 136).
The Court finds that, contrary to plaintiffs assertions, the record fully supports JHO

Gammerman's findings and conclusions of law. It is evident in JHO Gammerman's Report that
Page 5 of 10

he thoroughly rfviewed the files, was familiar with the case, heard the plaintiffs opposition to

the inquest, the testimony of witnesses that were subject to any cross examination by the
plaintiff had he not hung up, and his findings are supported by the hearing transcript, warranting
confirmation (see Adelaide Prods., Inc. v BKN Intl. AG,51 AD3d 598[1st Dept 2008]flhe

Special Referee clearly defined the issues and resolved matters of credibility, and had ample

support of those findings in the record and his report warranted confirmance"]; see also Nager v

Panadls, 51 AD3d 598[1st Dept 1998]). Based upon the foregoing, defendants' motion to
confirm the Report and Recommendation of JHO Gammerman is granted and plaintifrs cross-

motion to reject the Referee's Report is denied (see Maker ofSmythe v Goord, 41 AD3d 608
[2d Dept 2007]["There is no evidence in the record to support the [plaintifq's contention that the
hearing officer was biased... and there is no indication that the outcome of the hearing was
affected by any alleged bias on the part of the hearing officer"]).

Specifically, the portion of plaintiffs cross-motion seeking to reject JHO Gammerman's

Report and Recommendation as illegal and based on fraud and perjury by defendant's attorney
Burke and in violation of Justice Beeler's Order mandating the parties secure 'permission'

before filing, is denied. The record does not support any fraud or perjury by defendants or their
attorney Burke. This Court also granted leave for the parties to file applications to confirm or
reject JHO Gammerman's Report, thus complying with Justice Harold Beeler's Order and this
Court's Order dated December 24,2013.

The portion of plaintiffs cross-motion to vacate this Court's order, dated December 24,
2013, sixteen months after the initial decision is denied. Plaintiff makes this application after he

failed to perfect his appeal, or secure a stay of the decision from the Appellate Court and after
the Court has dqnied his previous motion to reargue as frivolous, without merit, and totally
unsupported by the Court record or the plaintiffs affidavit(see 22 NYCRR 130.1-1). The
motion to vacate is identical to the motion the plaintiff filed in motion sequence 068, blatantly
Page6 of 10

violating the Court's previous Order and without leave of the Court. Moreover, the Court

additionally finds that the herein application is indicative of a pattern by the plaintiff to
continualiy file muitiple motions to vacate or reargue decisions, without sufficient support, that
have been adversely ruled against him.

Regarding tjie plaintiffs cross-motion to disqualify Joseph Burke, defendants'counsei, it

is weli settled that "[Qhe disqualification of an attorney is a matter that rests within the sound
discretion of the coyrf {Flores v WillarcJJ. Price Assocs., LLC,20 AD3d 343,344[1st Dept

2005]; see Wells Fargo Bank, N.A. v Cam,82 AD3d 880,881 [2d Dept 2011]; Falk v Gallo, 73

AD3d 685,685[2d Dept 2010]; Harris v Scuico,86 AD3d 481,481 [1st Dept 2009]). "The right
to counsei is not absolute and may be overridden where necessary... but it is a valued right

and any restriction must be carefully scrutinized'{S&S Hotel Ventures Ltd. Partnership v tn
S.H. Corp.,69 NY2d 437,443[1987]; see MaUerofAbrams[John Anonymous],62 NY2d 183,

196[1984]). "A par^s entitlement to be represented in ongoing litigation by counsel of his or

her own choosing.:.should not be abridged absent a clear showing that disqualification is

warranted'(Gulino y Gulino, 35 AD3d 812,812[2d Dept 2006];see S&S Hotel Ventures Ltd.
Partnership,69 NY2d at 443; Matter ofAbrams,82 NY2d at 196; Campotongo v Campolongo,
2 AD3d 476,476[2d Dept 2003]; Domlnguez v Community Health Plan of Suffolk, 284 AD2d

294,294,[2d Dept 2001]). Accordingly,"motions to disqualify opposing counsel are disfavored

... and require a high standard of proof {Ciao-DI Rest. Corp. v Paxton 350, LLC,22 Misc 3d
1117[A], at *2[Sup Ct, NY County 2008]; see Goldsmith v Elenberg, 2013 WL 2142264,*B,

2013 NY Misc LEXIS 1997,*17[Sup Ct, NY County 2013]; see also Northwestern Natl. Ins. Co.
V Insco, Ltd., 2011 WL 4552997, M,2011 US Dist LEXIS 113626,*31 [SD NY 2011];

Tradewinds Airlines,Inc. v Soms,2009 WL 1321695,*3,2009 US Dist LEXIS 40689,*9[SD

NY 2009]).

When considering a motion to disqualify,"the court is guided, but not bound by" Rule
Page 7of 10

3.7 of the Rules of Professional Conduct(22 NYCRR 1200.0){Harris, 86 AD3d at 481 [The
decision whether td disqualify an attorney rests in the sound discretion of the courf]; see S & S
Hotel Ventures Ltd Partnershlp,69 NY2d at 443; Falk, 73 AD3d at 686). Courts "must consider

the totality of the circumstances" {Ferollto v VuHagglo,99 AD3d 19,27[1st Dept 2012], quoting
Abselet v Satra Realty, LLC,85 AD3d 1406,1407[3d Dept 2011); see Pamesy Fames,80
AD3d 948,952[3d Dept 201 Ij), and must take care to 'avoid mechanical application of blanket
rules'" {Pellegrino v Oppenheimer & Co., Inc., 49 AD3d 94,98[1st Dept 2008], quoting Teknh
Plex, Inc. V Meynet& Landls,89 NY2d 123,132[1996]; see S&S Hotel Ventures Ltd.
Partnership,69 NY2d at 444). The function of the court on such a motion is restricted to the

taking of such action as may be necessary to Insure a proper representation of the parties and
fairness in the conduct of the litigation"{Young v Oak Crest Paik, Inc., 75 AD2d 956,957[3d
Dept 1980]; see Booth v Continental Ins. Co., 167 Misc 2d 429,436[Sup Ct, Westchester

County 1995])."
The plaintiffs cross-motion to disqualify defendants counsel is denied. There is no
credible or rational basts in the Courfs record to support such an application. Moreover,

plaintiffs cross-motion to disqualify Burke is at least the tenth such motion for same,and this

Court conclude^ thait it is frivolous, totally without merit, and unsupported by the Court record,
and is designed to harass and annoy the defendant and his attorney. Thus, the cross-motion
violates Rule 130.1-1 and as such plaintiff is subject to sanctions.

Finally, plaintiff has been claiming he suffers from a serious illness since the inception of
this case since it was filed in 2004. He has chosen to proceed pro se, but continually asserts

that an illness prevents him from making Court appearances, participating in telephoiie
conferences,followiiig Court orders and rules, completing discovery requests and orders or

even defending or pi;osecuting his cases. The Court notes that plaintiff has failed to provide
admissible evidence of such illness, by affidavit or otherwise. Nonetheless,the plaintiff
Page 8 of 10

continues to file multiple motions over and over and to t>ombard the Court with ex parte

facsimile communications, In violation of this Court's Rules. The Court once again concludes
from the hearinig evidence, Including telephone calls to the Court and plaintiffs abusive nature
towards Court personnel by telephone, that he continues to be a vexatious litigator and is
needlessly prolonging this action to harass the defendant, his attorney, and needlessly
exhausts this Court's resources with motions completely devoid of merit.

In addition plaintiff has been repeatedly wamed about such action (see,inter alia,

motion sequences 047,058, dated August 3,2010, motion sequences 055,054, dated July 6,
2010, p. 3111. motion sequences 060,061,062,063,065, dated June 30,2011, motion

sequences 042,064, dated September 27,2011, Interim Court order, dated January 17,2014,

p.2H 5; Interim Court Order, dated February 18,2014, p. 3H 7, motion sequence 067, dated
December 24,2013). Plaintiff was given ample notice and opportunity to avoid sanctions and
an injunction (see Fowler v ConfortI, 194 AD2d 394,598 NY2d 789[1st Dept 1993]flhe

imposition of the maximum sanction of $10,000 for fdvolous conduct was appropriate in this
circumstance since plaintiff was forewarned about the dubious nature of this action and further
because the plaintiff has repeatedly engaged in vexatious litigation arising from the original...
case"]).
CONCLUSION

Accordingly it is,

ORDERED that defendant's motion pursuant to CPLR 4403 and 202.44 of the
Uniform Rules for the New York Supreme Court to confirm in its entirety the Report and
Recommendation of JHO Ira Gammerman,dated February 10,2015, is granted and the Report
and Recommendation is confirmed in its entirety; and it is further,

ORDERED that plaintiffs cross-motion pursuant to. Inter alia, CPLR 4403 and 202.44
of the Uniform Rules for the New York Supreme Court to reject the Report and
Page 9 of 10

'ff

Recommendation of JHO Ira Gammerman,dated February 10,2Q15 Is denied in its entirety;

and it is further,

ORDERED that defendants are awarded judgment on their counterclaims against the

plaintiff In the amount of $7,110,532.00, with interest frorp August 18,2003; and it Is further,
ORDERED that the Orders of Justice Harold Beeler, and the Order of this Court dated

December 12,2005 are still in place and are reissued, and the herein parties are enjoined from
taking any further action in this matter including, filing any motions, or filing any new actions

before this Court, without prior leave of the Administrative Justice of this Court; and it is further,
ORDERED that plaintiff is continuidd to be deemed a vexatious litigator and is enjoined

from:(1)asserting his medical or physical condition, or medical treatment thereof, or(2)

asserting his unavailability being out of state as a reason for non-appearance or non-

participation in i^urt procedure before this Court or Special Referee or any Court-appointee
thereof; and it is further,

ORDERED that the Clerk of the Court and the County Clerk of New York County are

ordered not to accept any further papers in connection with this matter, including any motions,

nor is plaintiff allowed to commence any new actions without prior leave of the Administrative
Justice of this Court; and it is further,

ORDERED that the defendants shall serve a copy of this Order with Notice of Entry on
the plaintiff James Couri and the Clerk of the Court who is directed to enterjudgment
accordingly.

This conkitutes the Decision and 0(der of the^ourt.

file

Dated: '/?5"/^

j027
LWOOTEN

JmSmCm

Ciwek one: FINAL bSsPrarhON J^NON.FINAL DISPOSITION

Cii'eck If appropriate: DO NOt POST REFERENCE
Page 10 of 10

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

PRESENT:

HON. PAULWOOTEN

PART_Z_

Justice

JAMES COURi,
PlalnW,

INDEX NO.

113812/08

- against NO.

005

JOHN SIEBERT and JOHN W SIEBERT, MD.PC.,

Defendants.

Notice of Motion/ Order to Show CauseAffidavits~ Exhibits

Answerina Affidavits Exhibits(Memol

\ filed

Replying Affidavits(Reply Memol

r-,

Cross-Motion: U Yes No

'JAH 2 7 2II
nn.nmrrtrmmi

j.

VBM'iOPK

Now before the Court is a motion by Jdnfes Couri (plaintiff), pursuant to CPLR 3126,for
an Order striking the defendants' answer and affirmative defenses and setting this matter down
for an inquest as to damages on the basis of defendants' refusal to comply with discovery

demands served in 2009, ordering defendants to produce documents and produce defendant

John Siebert for a deposition. Plaintiff also seeks disqualification of defendants' counsel Joseph
M. Burke, Esq.(Burke). Defendants are in opposition to the motion, and the plaintiff submits a
reply.
DISCUSSION

This action (2008 Case)was filed by the plaintiff, pro $e, and which the Court notes is
duplicatlve of another action pending before this Court in Couri v Siebert, under index no.

107240/2004(2004 Case). Plaintiff filed a complaint on June 24.2004, in the 2004 Case, and
then filed an amended complaint on August 21.2004. Plaintiffs amended complaint alleged
that the defendants owed him $600,000.00 for breach of contract on payments on a promissory

note. Due to the acrimonious nature of the parties, Honorable Harold Beeler instituted an

Page 1 of8

injunction which prohibited both parties from commencing a new action or filing a new motion
without leave or permission of the Court(Order dated December 12,2005 and February 17,
2006). PiaintifTs complaint and counterclaims were subsequently dismissed by the Appellate

Division, First Department in February 2008, wherein the Appellate Division granted the

defendants' motion to strike the claims based upon plaintiffs continued ifallure to comply with
discovery demands for his tax retums, but the defendants' counterclaim remained (see Couri v
Siebert, 48 AD3d 370[1st Dept 2008]).
With the consent of the Administrative Justice, the Honorable Michael J. Stallman, a

prior Judge assigned to the 2004 Case, granted the plaintiffs one-time application to file a new
action. Thus, on or about October 7,2008, plaintiff commenced the herein action, by Summons
with Notice, and subsequently filed a complaint. Defendant filed an answer with counterclaims
and issue was Joined.

In the 2004 Case,this Court granted defendants' motion to strike plaintiffs reply to
defendants' counterclaims and dismissed the plaintiffs counterclaims by Court order, dated
December 24,2013, inter alia, for failure to comply with discovery orders. In so doing this Court

labeled the plaintiff a vexatious litigator and (1)granted defendants' motion to strike and
dismiss plaintiffs reply to defendants' counterclaims;(2)deemed plaintiff a vexatious litigator
and enjoined plaintiff from:(a)asserting his medical or physical condition, or medical treatment
thereof, or(b)asserting his unavailability being out of state as a reason for non-appearance or
non-participation in court procedure before this Court or Special Referee or any Court-

appointee, and (3)re-issued the interim orders by Justice Harold Beeier, dated February 17,
2005, and his order dated December 12.2005, in which ail parties were enjoined from taking

any further action in this matter including, filing any motions, without prior leave of this Court.
On February 26,2014,the Court held a mandatory Compliance Conference in Part 7,
Courtroom 341,60 Centre Street, New York for both the 2008 and the 2004 Case. The plaintiff

despite having notice of the conference appearance, chose not to appear, without good cause
Page 2of8

for his non-appearance or to send an attorney on his behalf. The defendants appeared at the
conference and the Court proceeded to conference the cases.
Moreover, the relief sought by the plaintiff in this motion, to wit, discovery from the

defendants and the disqualification of Burke is duplicative of previous motions filed in the 2004
Case. In this motion plaintiff seeks to re-IHigate issues that have been resolved by numerous

Orders, including Motion Sequence 069 in the 2004 Case, and are thus denied as moot, barred

by the doctrines of res judicata (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343,347

[1999]("Under resjudicata, or daim preclusion, a valid final judgment bars future actions

between the same parties on the same cause of action"]; Serio v Town of Isllp, 87 AD3d 533,

534[2d Dept 2011]["although the plaintiff alieges in the instant action that the defendants
engaged in fraud, this purported new ciaim or theory is grounded on the same transaction or
series of transactions as the prior action"]; Yonkers Contr. Co., Inc. v PortAuth. Trans-Hudson

Corp.,93 NY2d 375, 380[1999][a "final condusion" may be indicated by the court through the
use of"on the merits" or "dismissal with prejudice" language, both interchangeably used to

predude further litigation on the matter]), and collateral estoppel ("[t]he party seeking the

benefit of collateral estoppel must demonstrate that the identical issue was necessarily dedded
in the prior adjudication and is decisive in the newly presented circumstance and forum. To
block the use of estoppel, a contestant can show the absence of a full and fair opportunity to

present relevanfviews in the prior contesf {David v Blonde, 92 NY2d 318,322[1998]).

Thus, plaintiffs motion is denied on the basis that(1)it violates Justice Beeleris Orders,
and this Court's order, dated December 24,2013. which labels plaintiff a vexatious litigator and

enjoins the parties from filing such motions without leave of the Court;(2) plaintiff improperly
filed a frivolous duplicative motion intended and designed to harass the defendants, to waste

judicial resources, cause unnecessary legal expenses, and cause duplicative litigation that

might lead to conflicting results(see lrt>-Brasll Resseguros S.A., v Portobello Intl. Ltd., 59 AD3d
388[1st Dept 2009]); and (3)It violates this Court's order, dated April 8,2015, which granted
Page 3of8

plaintiff a telephone conference with the.Court to consider granting him leave to file this motion,
which plaintiff ignored, and he subsequently filed this motion without leave of the Court {see
Court order dated April 6,2015).
Furthermore, plaintiff has made numerous other motions to disqualify Burke from
representing the defendants, which have ali been denied. As such, the portion of plaintiffs

motion herein seeking to disqualify defendants' counsel is denied. There is no credible or

rational basis in the Court's record to support-such an application (see Ciao-Di Rest Corp. v
Paxton 350, LLC,22 Misc 3d 1117IA], at *2[Sup Ct. NY County 20081 rmotions to disqualify
opposing counsel are disfavored... and require a high standard of proof]; Goldsmith v

Ellenberg, 20^3 WL 2142264,*8,2013 NY Misc LEXIS 1997,*17[Sup Ct, NY County 2013];

see also Northwestem A/atf. Ins. Co. v Insco, Ltd., 2011 WL 4552997,*4,2011 US Dist LEXIS

113626,*31 [SD NY 2011]; Tradewlnds Airlines, Inc. v Soros, 2009 WL 1321695,*3,2009 US

Dist LEXIS 40689,*9[SD NY 2009]; Floras v WillardJ. Price Assocs., LLC,20 AD3d 343,344

[1st Dept 2005]TMhe disqualification of an attorney is a matter that rests within the sound
discretion of the courf]; see Wells Fargo Bank, N.A. v Caro,82 AD3d 880,881 [2d Dept 2011];

FalkvGallo,73 AD3d 685,685[2dDept2010]; Harri$ vScuico, i36 AD3d481.481 [Ist Dept

2009]).

Moreover, plaintiffs motion to disqualify Burke as defendants' counsel is at least the

tenth such motion to disqualify him and this Court concludes that it is frivolous, totally without

merit, and completely unsupported by the Court record such that the Court deems it to be

designed to harass and annoy the defendant and his attorney. Plaintiff sought disqualification
in the 2004 Case as recently as Motion Sequence 069, which was also denied,
Part 130 of the Rules of the Chief Administrator permits courts to sanction parties or

attorneys for engaging in frivolous conduct, which includes conduct:(1)"completely without

merit in law";(2)"undertaken primarily to... harass or maliciously injure another"; or(3)

"asserting] material factual statements that are false'(see 22 NYCRR 130-1.1; Tavella v
Page4of8

Tavella, 25 AD3d 523,524[1st Dept 2006]). Plaintiff, acting pro se, has engaged in a pattern
of abusive iitigation against the defendant by filing expensive frivolous and duplicative motions
designed to harass, injure and annoy the defendant, and as a result plaintiff is subject to
sanctions.

Plaintiff in the 2004 Case previously filed more than six summary judgment motions,
multiple frivolous motions to vacate, motions to reargue, multiple motions to disqualify

defendants'counsel, and motions seeking to recuse judicial officers that rule adverse to his
position, and almost all of the motions repeatedly allege the same arguments. Moreover,

plaintiffs intent, in both the 2008 and the 2004 Cases, is to prolong the resolution of the matter

as a means of harassing the defendant, and to waste judicial resources which is evident from:

(1) plaintiffs choice to proceed pro se, and continued repeated frivolous motion praptice despite
warnings by the Court and orders;(2) plaintiffs failure to make court appearances for good

cause in order to represent himself or to provide an attorney for same;(3)repeatedly refusing

or ignoring Court orders to cooperate with the discovery process;(4) verbally abusing Court
personnel by telephone and repeatedly leaving harassing and threatening messages on the

Court message system; and (5) his repeated insistence, for more than 11 years, that he is too ill
to participate in Court procedures, appearances and conferences whenever the Court seeks to
move this case or respond to his telephone requests.

The plaintiff has chosen to proceed pro se when he filed this action in 2004 and 2008,

and has also proffered an undocumented illness which has kept him from prosecuting this
action since 2004. Plaintiff has not substantiated any such illness as he has failed to timely

provide the proper medical authorizations, and he has failed to provide valid documentation of
his alleged illness, through valid affidavit or otherwise, when given more than two years to do
so, and refused a medical examination by the defendants(see Motion Sequence 29[2004
Case]dated November 10,2009).

In the 2004 Case this Court has repeatedly denied the plaintiffs pro se motions for
Page 5 of8

failure to follow this Court's injunction requiring that he obtain permission of the Court prior to

filing any new action or motion, and/or warned the plaintiff that this continued action would be
sanctionable(see Motion Sequences 047,058, Order dated August.3,2010, Motion Sequences

055,054, Order dated July 6,2010, p. 3^ 1, Motion Sequence 060,061,062,063,065, Order

dated June 30,2011, Motion Sequence 042,064, Order dated September 27,2011, Interim

Court Order, dated January 17,2014, p. 2 H 5; Interim Court Order, dated February 18,2014, p.

3^7, motion sequence 067, dated December 24,2013). "Notwithstanding the public policy
requiring free access to the courts, the motion court's order barring plaintifffrom initiating

further litigation or motion practice against defendants without prior court approval unless he is

represented by counsel was justified by piainfrifs continuous and vexatious litigation against
defendants'{Banushi v Law Off. ofScott W. Epstein, 111 AD3d 558,558[1st Dept 2013];
Breytman v Pinnacle Group, 110 AD3d 754[2d Dept 2013]["while public policy mandates free
access to the courts, when a litigant is abusing the judicial process by harassing individuals

solely out of ill will or spite, equity may enjoin such vexatious litigation"]; DImery v Ulster

Savings Bank,82 AD3d1034[2d Dept 2011]); lrt)-Brasil Resseguros S.A., 59 AD3d at 366
["The court properly invoked Its equity power to enjoin defendants from prosecuting the action.
.. in order to prevent the waste ofjudicial resources, unnecessary legal expenses, and
duplicative litigation that might lead to conflicting results'] Couri v Siebert, 48 AD3d 370[1st

Dept 2008]; Lammers v Lammers, 235 AD2d 286[1st Dept 1997][Given the numerous
frivolous motions defendant has made, it was a proper exercise of discretion for the court to

enjoin her from making any further motion in this action without judicial approval]; Schwartz v
Nordstrom, inc., 160 AD2d 240,242, appeal dismissed 76 NY2d 845 imO],Iv denied 76 NY2d
711 [1990]; Ultracashmere House v Kenston Warehousing Corp., 166 AD2d 386[1st Dept

1990]rihe injunction^ against further litigation by [this plaintiff] was clearly justified by the
vexatious nature of these [prior] proceedings and the concomitant abuse of the judicial
process"]).
Page6 of8

In denying the herein motion in its entirety,, the Court also finds it appropriate to impose
sanctions in the amount of $2,500.00 against the plaintiff, pursuant to 22 NYCRR 130-1.1,for
bringing a frivolous and duplicative motion, brought primarily to harass and waste Court

resources, without prior court approval. Finally, the Verified Complaint is dismissed for
plaintiffs failure to appear at the call of the calendar for a mandatory Compliance Conference

on February 26,2014, pursuant to 22 NYCRR 202.27(b). This Court has previously ruled that
plaintiff cannot use his medical condition, which plaintiff has failed to substantiate through valid
and admissible documentation, as a basis for falling to appear in Court or to follow this Court's
Orders.

CONCLUSION

Accordingly it Is,

ORDERED that plaintiff James Court's motion brought pursuant to CPLR 3126,for an

Order striking the defendants' answer and affirmative defenses and setting this matter down for
an inquest as to damages on the basis of defendants' refusal to comply with discovery

demands served in 2009, ordering defendants to produce documents and produce defendant
John Siebert.for a deposition, and for disqualification of defendants'counsel Joseph M. Burke,
Esq. is denied in its entirety; and it is further,

ORDERED that the Verified Complaint Is dismissed for plaintiff's failure to appear at the
call of the calendar for a mandatory Compliance Conference on February 26, 2014, pursuant to
22 NYCRR 202.27(b); and it is further,

ORDERED that the Court sua sponte imposes sanctions against plaintiff in the amount

of $2,500.00, pursuant to 22 NYCRR 130-1.1,for filing a successive frivolous motion In violation

of Section 130-1.1 of the Rules of the Chief Administrator, and for filing this motion without prior
leave of the Court, In violation of the Orders of Justice Harold Beeler and of this Court; and it Is
further,

ORDERED that the aforementioned sanctions are to be deposited with the Clerk of the
Page 7 of8

Court for transmittal to the Commissioner of Taxation and Finance; and it is further,
ORDERED that the Orders of Justice Harold Beeler, and the Order of this Court dated

December 24,2013 are still in place and are reissued, and the herein parties are enjoined from
taking any further action in this matter including, filing any motions, or filing any new actions
before this Court, without prior leave of the Administrative Justice of this Court; and it is further.
ORDERED that plaintiff is continued to be deemed a vexatious litigator and is enjoined
from;(1)asserting his medical or physical condition, or medical treatment thereof, or(2)
asserting his unavailability being out of state as a reason for non-appearance or non-

participation In court procedure before this Court or Special Referee or any Court-appointee;
and it is further,

ORDERED that the parties'failure to comply with the terms of this order shall subject
the parties to dismissal of their action, sanctions or contempt of the Court; and it is further,

ORDERED that the Clerk of the Court and the County Clerk of New York County are

ordered not to accept any further papers in connection with this matter, including any motions,
nor is plaintiff allowed to commence any new actions without prior leave of the Administrative
Justice of this Court; and it is further,

ORDERED that the defendants shall serve a copy of this Order with Notice of Entry on
the plaintiff and the Clerk of the Court who is diractftH tn

This constiti^J^^^^p6l|^
i

o1|he Court.

jiirff|monf accordingly.

JAN 2 7

DaM:

AULWOOTEN J.S.C.

Check one: FINAL DISPOSITION NON-FINAL DISPOSITION

Check if appropriate:

DO NOT POST

Page 8 of^
!

i
i

REFERENCE

. f\\ja SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT:

Paul Wooten

PART Ir
Justle9

Index Number:101033/2015
COURI. JAMES
vs.

burke.JOSEPH M.

lilSTibN8gQ.N0..

SEQUENCE NUMBER:002
SUMMARY JUDGMENT

NVC SUPRiME,COURTOFRCE
"Yg
- Apii

The following papers, numbered 1 to 4 ,were read on this motion to/for

Notice of Motion/Order to Show Cause~ AfRdavHs Exhibits

|No(s)._L3l^

Answering Affidavits Exhibits

|Nq(). 3

Replying Affidavits

Upon theforagoing papers,It Is ordered thatthis motion Is diC\diO^ VH 3COO(iS^SPC& UOcV^

'"^mSTfioftainduiiri deeiis^ \a VooWi .SeciMewifl oo\.

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JAN2 7 2II

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Dated:

;j.s.c.

lul Woofen
1. CHECK ONE:
2. CHECK AS APPROPRIATE:
3. CHECK IF APPROPRIATE:..

CASE DISPOSED

.MOTION IS: GRANTED

[^ENIED GRANTED IN PART OTHER

SETTLE ORDER

do NOT POST

NON-FINAL DISPOSITION

SUBMIT ORDER

fiduciary APPOINTMENT

REFERENCE

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

PRESENT:

RT 7

HON, PAULWOOTEN
Justice

JAMES COURi,
INDEX NO.^ ..nrs

Plaintifr,

1033rt8

- against -

JOSEPH M.BURKE ESQ., RUSSO & BURKE

ESQ.,JOHN DOE 1-10
Defsndants.

The following papers, numbered 1 to 2,were read on this motion by defendants to dismlse the
complaint.
PAPERS NUMBERED

Notice of Motion/ Order to Show CauseAffidavits .Exhibits

Answering Affidavits Exhibits(Mem<
Replying Affidavits(Reply Memo).

Cross-Motion: H Yes No

JAN 2.7 201S

(XXJNTYCLERtCS OmCi

Motion Sequences 001 and 002 are coNSSfi^SSB^or purposes of disposition.

This case was commenced by James Couri (plaintifO, pro se, by the filing of a

Summons with Notice and Verified Complaint on June 1,2015 against defendants Joseph M.
Burke, Esq. (Burke) and the law firm of Russo and Burke. Esq. Burke represented the

prevailing defendants in earlier lawsuits brought pro se by the plaintiff in Couri v Slebert, et el.
Index no. 107240/2004 (2004 Case) and Couri v Siebert, et al. index no. 113512/2008 (2008

Case). On June 15,2015, plaintiff filed a Request for Judicial Intervention and listed as related
cases the 2004 Case and the 2008 Case. In the instant action plaintiff alleges that Burke

violated the New York State Judiciary Law 487,22 NYCRR 130-1.1, and that he engaged in
fraud and deceit in his representation of the Siebert defendants in the aforementioned prior
cases which involved, inter alia, a claim for breach of contract of a promissory note.

Now before the Court is a motion by the defendants, brought by Order to Show Cause
Page 1 of 7

(OSC)on June 15,2015,(1)seeking dismissal of the complaint on the grounds that plaintiff
has failed to comply with the Orders of Justice Beeler, dated December 12,2005 and February
17,2006, and reissued by an Order of this Court dated December 24,2013, wherein the Court
enjoined the plaintiff from commencing or filing any lawsuits, complaints, proceedings, or

motions in any court or administrative body against any other party, including Joseph M. Burke,
Esq., and the law firm of Burke and Russo, without prior court authorization;(2)for attorneys'

fees and costs for commencing a lawsuit in violation of the aforesaid orders of Justice Beeler
and this Court; and (3)for such other and further relief as this Court deems just and proper

(Motion sequence 001).^ Also before the Court is a cross-motion brought by plaintiff on
October 30,2015 to vacate the defendants' OSC to dismiss the complaint, as well as

defendants' answer and counterclaims, and prior Orders resolving motions made in his prior
cases. Plaintiff also seeks disqualification of this Court in his cross-motion.

Also before the Court is a motion by the plaintiff(Motion Sequence 002)brought on July

17,2015,for summary judgment and to disqualify Burke from representing the defendants.
DISCUSSION

The defendants' motion to dismiss the Verified Complaint filed in this action is granted,

both proceduraliy and substantively. Firstly, as defendants assert in their motion to dismiss,
plaintiff failed to comply with Justice Beeler's December 12,2005 and February 17,2006
Orders, and this Court's order dated December 26,2013, which requires that plaintiff seek and

obtain leave of the Court prior to commencing or filing any lawsuits or filing any motion. The
Court notes that the defendants herein. Burke and the law firm of Burke and Russo, are not

parties to the 2004 Case and 2008 Case and as such, are not subject to the injunctions
Imposed by Justice Beeler or this Court in its prior orders.

'The OSC is not reflected in the Scroll Court System.

Page 2 of 7

Additionally, the plaintiff, as a matter of oourse, has continually bombarded the Court
with facsimile communications, not accompanied by a valid affidavit of service on the

defendants, which this Court has either disregarded or voided for constituting ex parte
communications with the Court. Plaintiff must provide proper proof of service, by affidavit, that

he has properly served his adversaries with all correspondence sent to the Court, by facsimile
or othenwse. The Court previously held In the 2004 Case, In relevant part:

"PlaintlfPs request for leave to reargue motion sequence 067 Is

both procedurally and substantively denied. Therefore, plaintiff's
facsimile submission, dated January 7,2014, and subsequent
letters are hereby improperly submitted to this Court, and are thus
rejected and voided as In violation of Justice Beeleris Order dated
December 12,2005 and this Courts Order dated December 24,
2013. Moreover, pursuant to this Court's Part Rules, available
online, any facsimile received without prior Court permission will
not be considered. Furthermore, this Court does not countenance

litigation by correspondence, volcemall or telephone and such

communications. Including correspondence not accompanied by
an affidavit of service on the other parties, will not be
acknowledged or returned. Questions regarding how to proceed
or other court matters by the plaintiff should be directed to the
Help Center(60 Centre Street, Room 116,646-386-3025), not
Part 7 or the chambers of this Court".

The Court notes that on substantive grounds, In looking to the substance of the pleading

rather than to Its form (see Foley v D'AgosUno,21 AD2d 60,64[1st Dept 1964]), and In viewing
the complaint In the light most favorable to the plaintiff and affording the plaintiff the benefit of

every possible Inference (see Leon v Martinez, 84 NY2d 83,87-88[1994]), plaintlfFs complaint
falls to state a cause of action In Its entirety. Specifically, plairitiffs cause of action for fraud is
not plead with the requisite specificity(see CPLR 3016[b]), and plaintiff also falls to state

sufficient factual allegations which tend to show that defendants^ alleged deceit or fraud was the
proximate cause of his damages(see Briarpatch Ltd, LP. v Frankfurt Garbus Klein & Selz,
P.C., 13 AD3d 296, 297-98[1st Dept 2004]). The Court also finds that the plalntlfTs claims are
Insufficient to state a cause of action pursuant to Judiciary Law 487 as a matter of law.
Page 3of 7

Moreover, the complaint also seeks to re-litigate claims and issues already decided against the
plaintiff in the 2004 and 2008 Cases. Such attempts to re-litigate claims against different

defendants than those In the case at bar are improperly asserted In this action, and are barred
by law of the case on the 2004 and 2008 Cases.

The Court now tums to the portion of defendants' motion seeking attomeys'fees and

costs for commencing the herein action. Given the plaintiffs extensive litigation history, which
includes plaintiff being a vexatious litigator, the Court concludes that he is a knowledgeable

litigator, was labeled a vexatious iltigator, and is familiar with Court Orders and rules, including
Rule 130. Furthermore,"[Qhis pattern of frivolous satellite litigation imposes significant

unnecessary burdens on the defendants and constitutes an abuse of the judicial process"
{Fowler vConforti, 194 AD2d 394,394[Ist Dept 1993]; Ultracashmere House v Kenyan

Warehousing Corp., 166 AD2d 386[1st Dept 1990)["The lnjunctlon[sl against further litigation
by [this plaintifq was clearly justified by the vexatious nature of these [prior] proceedings and
the concomitant abuse of the judicial process']).

Moreover, plaintiff has been on notice of the possibility of sanctions from numerous

Orders in his other cases(see Motion Sequences 047,058, Order dated August 3,2010, .

motion sequence 055,054, Order dated July 6,2010, p. 3tf 1i Motion Sequence 060,061,062,
063,065, Order dated June 30,2011, Motion Sequences 042,064, Order dated September 27,

2011, Interim Order dated January 17,2014, p. 2115; Interim Order dated February 18,2014,
p. 3If 7, Motion Sequence 067, Oder dated December 24,2013; Motion Sequences 068 and
069).

"Finally, the court must take action addressing the pattem offrivolous behavior of[the
plaintiff]. The sanctions[and injunction]imposed by this court on [...] prior occasions have

failed to deter plaintiff and, accordingly, the court must Impose an additional constraint" {Fowler,
194 AD2d at 394). The plaintlfPs pattem consists of successive meritless motions to re-litigate
Page 4 of 7

issues that have already been decided against the plaintiff in the 2004 and 2008 Cases, which

are law of the case, as well as instituting a new merrtless action arising out of an aspect of the
2004 and 2008 Cases. The Court finds it appropriate to grant defendants' request for
attorneys'fees and costs, given plaintiffs violation of the injunctions placed against him by

Justice Beeler and this Court. The Court also, $ua sponte, imposes the maximum amount of
sanctions upon the plaintiff, pursuant to 22 NYCRR 130-1.1,for bringing a new meritless action,

as well as two motions without prior consent of the Court. Part 130 of the Rules of the Chief
Administrator permits courts to sanction any party or any attorney for engaging in frivolous

conduct, which inciudes conduct:(1)"completeiy without merit in law";(2)"undertaken primarily

to... harass or maliciously injure another"; or(3)"assert[ing] material factual statements that are
false"{see 22 NYCRR 130-1.1; TaveHa v Tavetta, 25 AD3d 523,524[1st Dept 2006]; see

Fowler, 194 AD2d at 394[the imposition of the maximum sanction of $10,000 for frivolous
conduct was appropriate in this circumstance since plaintiff was forewarned about the dubious
nature of this action and further because the plaintiff has repeatedly engaged in vexatious

litigation]). "Proceeding pro se is not a license to ignore court orders, engage in dilatory and

obstructive conduct or malign officers of the court"(see Couri v Slebert,48 AD3d 370,371 [1st
Dept 2008]).

As a result of the foregoing, the portions of plaintiffs cross-motion seeking to vacate the
defendants' OSC to dismiss the complaint, as well as defendants' answer and counterclaims,
and prior Orders resolving motions made in the 2004 and 2008 Cases are denied as moot. The
portion of the plaintifrs cross-motion seeking recusal of this Court is denied. Plaintiff has not

demonstrated a basis for mandatory disqualifioation or recusal(see Judiciary Law 14; 22

NYCRR 100.3[E][1]), and absent such a basis for recusal, the decision whether to recuse is
up to the judge himself, subject to his own conscience and discretion (see Gabay v Bender, 34
AD3d 207,207[1st Dept 2006], leave to appeal dismissed 11 NY3d 760[2008], reargument
Page 5 of 7

denied 11 NY3d 852[2008]["Absent a legal disqualification under Judiciary Law 14, a Trial
Judge is the sole arbiter of recusal. This discretionary decision Is within the personal
conscience of the court..

Furthermore, in light of this Court's dismissal of the Verified

Complaint In Motion Sequence 001,the relief requested by the plaintiff in Motion Sequence

002, namely for summary judgment and for disqualification of Burke, are denied as moot^
CONCLUSION

Accordingly, it Is

ORDERED that the portion of defendants' motion (Motion Sequence 001)to dismiss the

Verified Complaint Is granted and plaintiffs complaint is dismissed in its entirety, with costs and
disbursements to the defendants, as taxed by the Clerk of the Court upon submission of an
appropriate bill of costs; and it is further,

ORDERED that the portion of defendants' motion (Motion Sequence 001)seeking

attorneys'fees Is granted, and the issue of defendants' reasonable attorneys'fees and costs
incurred in the herein action is referred to a Special Referee to hear and determine; and it Is
further,

ORDERED that the plaintiffs cross-motion to vacate (Motion Sequence 001)the

defendants' Order to Show Cause to dismiss the complaint, as well as defendants' answer and

counterclaims, prior Orders resolving motions made In his prior cases, and for disqualification is
denied as moot; and it is further,

ORDERED that the plaintiffs motion (Motion Sequence 002)for summary judgment and
to disqualify Burke from representing the defendants is denied as moot; and It Is further,
ORDERED that the Court sua sponte imposes sanctions against plaintiff in the amount

of $10,000.00, pursuant to 22 NYCRR 130-1.1,for (1)commencing this action and filing a

separate summary judgment motion in contravention of this Court's multiple Rules and without
^ The plaintiffs motion for summary judgment(Motion Sequence 002)was brought with a
defective affidavit of service.

Page6 of 7

permission or leave of the Court; and (2)for filing a frivolous complaint and summary judgment
motion; and it is further,

ORDERED that the aforementioned sanctions are to be deposited with the Clerk of the
Court for transmittal to the Commissioner of Taxation and Finance; and it is further,

ORDERED that counsel for defendants is directed to serve a copy of this Order with

Notice of Entry on the Special Referee Clerk of the General Clerk's Office(Room 119)to
arrange a date for the reference to a Special Referee, and it is further.
ORDERED that the Clerk of the Court and the County Clerk of New York County are

ordered not to accept any further papers in connection with this matter, including any motions,

nor is plaintiff allowed to commence any new actions without prior leave of the Administrative
Justice of this Court; and it is further,

ORDERED that the defendants shall serve a copy of this Order with Notice of Entry on

the plaintiff and the Clerk of the Court who is directed to enterjudgment accordingly.
This constitutes the Decision and Order of the Court.

Dated:

\ 7.5
PAULWOOTEN

Check one: FINAL DISPOSITION

NON-FINAL DISPOSITION

Check If appropriate: . D DO NOT POST HREFERENCE

filed
?

JAN 2 7 20#

'^Ot(NTyCLBC3(

Page 7 of 7

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

JAMES COURI,

Plaintiff,

JUDGMENT AFTER INQUEST

-againstJOHN

SIEBERT and

JOHN W.SIEBERT, M.D.,P.C.,

Index No. 107240/2004

Defendants.

Defendants JOHN W.SIEBERT and JOHN W.SIEBERT, M.D.,P.C., having conducted

an inquest before Judicial Hearing Officer Ira Gammerman,on December 15,2014, who issued a
Report and Recommendation("Report and Recommendation")dated December 15,2014

recommending that defendants have judgment on their counterclaims against plaintiff JAMES
COURI in the amount of$7,110,532, with interest from August 18,2003; and defendants

having moved for an order confirming the Report and Recommendation and plaintiff having
cross-moved for an order rejecting the Report and Recommendation; and the Hon. Paul Wooten

having issued a Decision and Order entered on January 27,2016 which confirmed the Report and
Recommendation,and denied plaintiffs motion to vacate the Report and Recommendation,and

ordered that that defendants havejudgment on their counterclaims against plaintiffin the amount
of$7,110,532 with interest from August 18,2003 and further ordered the Clerk ofthis Court to
enterjudgment forthwith in accordance with the Decision and Order;
NOW,on motion of Abrams Deemer PLLC,attorneys for defendants JOHN W.

SIEBERT and JOHN W.SIEBERT, M.D.,P.C., it is hereby

ADJUDGED that defendants JOHN

SIEBERT and JOHN W. SIEBERT, M.D.,P.C.,

Page 1 of2

whose address is 634 Bascom Hill Drive, Baraboo, Wisconsin 53913, recover from and have

^rv TV e cle.<n ^ io v\

judgment^against plaintiff JAMES COURI,whose address is 78365 Highway 111, Suite 322, La
Quinta, CA 92253 in the amount of$7,110,532.00, plus interest on said amount from August 18,

2003 ItaHiqiHiHHlMHiifaHMpHMililMlpmiamounting to $ 7^
altogether totaling $

^3 i

- "l.and that defendants JOHN

SIEBERT and

JOHN W.SIEBERT, M.D.,P.O. have execution therefor.

Plaintiffs address: 78365 Highway 111, Suite 322, La Quinta, CA 92253

Defendants' address: 634 Bascom Hill Drive, Baraboo, Wisconsin 53913

FILED'
FEB -3 2016
COUNTY CLERK'S 0FP15
NEW YORK

Page 2 of2

and

SUPREME COURT OF THE STATE Or NEW YORK

COUNTY OF NEW YORK

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