Zappin V Cooper Petition For Rehearing and Rehearing en Banc

Case 18-1545, Document 70, 06/03/2019, 2578770, Page1 of 26
18-1545
__________________________________________________________________
UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT
__________________________________________________________________
ANTHONY JACOB ZAPPIN,
Plaintiff-Appellant,
-against-
MATTHEW F. COOPER,
A JUSTICE OF THE SUPREME COURT OF NEW YORK,
IN HIS OFFICIAL CAPACITY,
Defendant-Appellee.
___________________________________________________________________
On Appeal from the United States District Court

for the Southern District of New York
___________________________________________________________________
APPELLANT’S CORRECTED PETITION FOR

REHEARING AND REHEARING EN BANC
___________________________________________________________________
Anthony Zappin
1827 Washington Blvd.
Huntington, WV 25701
(304) 830-6225 (tel.)
anthony.zappin@gmail.com
Appellant
TABLE OF CONTENTS
INTRODUCTION .................................................................................................... ii
FACTUAL BACKGROUND ....................................................................................5
ARGUMENT ...........................................................................................................10
A. The Court Incorrectly Held that There Was an Identity of Issues in
Upholding the Application of Collateral Estoppel .........................................10
B. The Court Incorrectly Held that Appellant Had a Full and Fair
Opportunity to Litigate the Defamatory Statements ......................................12
CONCLUSION ........................................................................................................15
CERTIFICATE OF COMPLIANCE .......................................................................17
CERTIFICATE OF SERVICE ................................................................................18
i
TABLE OF AUTHORITIES
Cases
Crystal Clear Development, LLC v. Devon Architects of New York, P.C.,
949 N.Y.S.3d 398 (N.Y. 2nd Dept. 2012) ...................................................... 10, 15
Downtown Acupuncture PC v. State Wide Ins. Co., 21 N.Y.S. 548, 533

(N.Y. Kings Cnty. Civil Ct. 2015) ........................................................................11
Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455 (N.Y. 1st Dept. 1985) .................10
Montoya v. JL Astoria Sound, Inc., 939 N.Y.S.2d 92, 95 (N.Y. 2nd Dept. 2012) ...11
Ryan v. New York Telephone Co., 62 N.Y.2d 494, 500 (N.Y. 1984) ......................13
Zappin v. Comfort, 49 N.Y.S.3d 6 (N.Y. 1st Dept. 2017) ........................................15
ii
INTRODUCTION
This Court, arguably the second most influential court in the United States,
has reached a low point. In its May 15, 2019 Summary Order (hereinafter, the
“Summary Order”) issued in this appeal, the Court not only condoned the derisive
and unlawful actions of a state judicial officer insidiously designed to inflict harm
on a litigant, but it papered-over and obscured Justice Matthew F. Cooper’s unethical
and extrajudicial acts in its decision. Indeed, nowhere in its perfunctory four (4)
page decision does this Court even mention the central issue in this matter: Justice
Cooper’s undisputed and admitted extrajudicial conduct of personally disseminating
a statutorily sealed draft matrimonial decision containing unlitigated and
intentionally defamatory assertions about Appellant to the tabloid press, which
included The New York Law Journal, The New York Post and The New York Daily
News. This Court instead casted Appellant’s claims as an attempt to undo a state
court decision, something which finds no support whatsoever in the record.
One of the primary purposes of the federal courts is to protect individuals from
abusive state court officials. There is no judicial officer more abusive, intemperate
or unfit than Justice Cooper. He has spent his entire career on the bench degrading,
bullying, terrorizing and needlessly humiliating litigants appearing in his courtroom.
This includes highlights such as in the tabloid press publicly calling matrimonial
litigants “Bed-Pooping Cokehead,”1 “The Shyster of Smoked Meat,”2 and his all-
time favorite “Deadbeat Dad.”3 He has gone so far as to admit in testimony before
the New York State Assembly that he “shames” litigants into outcomes that he
believes are just, even when they are contrary to the law.4 And, most egregious of
all are his statements and admissions behind closed doors to the New York Women’s
Bar Association:
MODERATOR (Attorney Judy White): I

hope that’s a good segue. What do we have
to do to convince you to put them [fathers] in
jail?
JUSTICE COOPER: Not much.5
1
See, e.g., “Judge Slams ‘Bed-Pooping, Cokehead’ Banker, Alcoholic Wife,” The New
York Post, by Julia Marsh, published January 8, 2015, available at
https://nypost.com/2015/01/08/judge-blasts-banker-wife-for-horrible-fiasco-of-a-divorce/.
2
See, e.g., “Judge Calls Carnegie Deli Manager ‘The Shyster of Smoked Meat,’” The New
York Post, by Julia Marsh, published August 5, 2015, available at
https://nypost.com/2015/08/05/judge-calls-carnegie-deli-manager-the-shyster-of-smoked-meat/.
3
See, e.g., “Judge Rips ‘Broke” Deadbeat Dad Who Skied in Alps,” The New York Post,
by Julia Marsh, published May 14, 2015, available at https://nypost.com/2015/05/14/deadbeat-
dad-claimed-poverty-while-taking-european-ski-trips/.
4
See https://www.nysenate.gov/sites/default/files/articles/attachments/
Spousal%20Maintenance%20Hearing%20Public%20Record.pdf
5
See https://www.youtube.com/watch?v=X661udvkcC8 at 0:33.
2
JUSTICE COOPER: There is nothing like

threatening somebody. One is a threat and
this is one of the things I kinda live for in the
job is to be able to tell people “if you don’t
come up with this, there’s a good chance
you’re going to be [put in jail].” And, I have
lots of different lines, I use “bring your
toothbrush next time.”
My new line, actually seems to work very

well is “Sir, we’re going to adjourn this case,
but I want you now … to provide the bridge
officer with a list of the medication you take
so that it can then be passed on to the
Department of Correction.” I hope I’m not
giving away a trade secret, right? “Do not
come here with your wallet. Please do not
bring your Rolex.” 6
JUSTICE COOPER: My favorite question is

what kind of car do you drive. If it’s a Range
Rover, an Escalade or a high-end Lexus,
that’s prima facie case for imprisonment.7
It is revolting, yet critical to see the smug grin on Justice Cooper’s face first-hand as
he makes these appalling and unethical statements because it says it all not only
about his lack of character and integrity, but his willingness to abuse his position on
the bench, disregard the law and unlawfully harass and disparage litigants to feed
his ego and for kicks.
6
See https://www.youtube.com/watch?v=cTOnYzcGeg0 at 0:52.
7
See https://www.youtube.com/watch?v=kiIzRmy73vU at 0:15.
3
In this matter, Appellant sought to hold Justice Cooper accountable for his
patently unlawful and extrajudicial conduct in Appellant’s personal divorce case.
Specifically, Justice Cooper fabricated disparaging assertions regarding Appellant
and distributed them in a draft decision to the press. He eventually published a
version of that decision in violation of New York State law on September 15, 2015
in which he imposed a $10,000 sanction on Appellant where the record is remarkably
clear that Appellant had no opportunity to defend himself. Much like the pattern of
conduct described above, Justice Cooper abused his position on the bench to
intentionally and extrajudicially inflict harm on Appellant and Appellant’s child
turning the divorce and child custody proceeding into a gratuitous three-ring circus.
Justice Cooper dedicated the rest of the Zappin v. Comfort proceeding not only
unlawfully seeking to inflict harm on Appellant, but manufacturing a record and
fabricating findings to conceal his own judicial misconduct.
The fact that this Court chose to disregard and obscure the facts of this case
in the Summary Order to insulate Justice Cooper and his horrendous pattern of
abusive conduct from liability is truly inexcusable. The key facts of this matter are
apparent and undisputed: (i) Justice Cooper engaged in extrajudicial conduct
stripping him of judicial immunity by disseminating a draft matrimonial decision to
the tabloid press; and (ii) the draft decision contained defamatory and unequivocally
untrue assertions about Appellant that were never previously litigated or placed at
4
issue for a decision by Justice Cooper. The Summary Order wholly fails to address
these facts anywhere. Most importantly, however, these facts make certain that the
application of collateral estoppel in this matter is entirely inappropriate.
Both the District Court and this Court erred by brushing Justice Cooper’s
egregious and unprecedented misconduct under the rug. It is the duty of this federal
court to ensure Appellant is protected from the abusive and unlawful actions of
Justice Cooper, which the Summary Order not only fails to do, but instead
perpetuates the ongoing cover-up of Justice Cooper’s misconduct in the Zappin v.
Comfort matter. The law does not bend and Justice Cooper does not earn a free pass
simply because he wears a black robe. As set forth below, rehearing is warranted.
FACTUAL BACKGROUND
This matter stems from the state court matrimonial action, Anthony Zappin v.
Claire Comfort, Index No. 301568-2014, filed in New York County Supreme Court
on February 11, 2014 (hereinafter, “Zappin v. Comfort”). The Zappin v. Comfort
matter was originally assigned to Justice Deborah Ann Kaplan, who presided over
the matter until May 2015. (See Appx. at A11, Am. Compl. at ¶ 12.) After the
conclusion of a proceeding in Zappin v. Comfort a proceeding on April 21, 2015,
Appellant was taken into a secluded hallway by Justice Kaplan’s court officer and
assaulted, which resulted in Appellant being hospitalized with significant bruising
on several parts on his body. (See Dist. Ct. Dkt. No. 61, Zappin Decl. at Ex. 1, Court
5
of Claims Complaint.) Appellant filed an action in the New York Court of Claims
seeking relief in connection with the assault. (See id.) In the complaint, Appellant
alleged that Justice Kaplan had apparently directed her court officer to unlawfully
detain Appellant in the secluded hallway where the assault occurred. (See id.)
As an apparent result of Appellant’s Court of Claims action, Justice Kaplan
was stripped of her case load and reassigned to an administrative position in the New
York Office of Court Administration. (See Appx. at A11, Am. Compl. at ¶¶ 12-16.)
Out of over 200 cases on Justice Kaplan’s docket, the Zappin v. Comfort proceeding
was singled-out and assigned to Justice Cooper. (See id. at ¶ 16.) He began
presiding over the matter on July 22, 2015. (See id.) Based on Justice Cooper’s
conduct in the Zappin v. Comfort proceeding, it was overwhelmingly apparent that
he was assigned to preside over Zappin v. Comfort in retaliation for Appellant filing
the Court of Claims action and to attempt to generate findings adverse to Appellant
to discredit him and thwart the Court of Claims action from proceeding.8
After less than two (2) months presiding over the Zappin v. Comfort matter
and without Appellant so much as opening his mouth in Justice Cooper’s courtroom,
Justice Cooper issued a sanctions decision on September 18, 2015 imposing a
8
Indeed, at the child custody trial in Zappin v. Comfort in November 2015, Justice Cooper
dedicated a significant portion of the proceeding to personally cross-examining Appellant about
allegations in his Court of Claims complaint, something which neither Ms. Comfort nor the
Attorney for the Child had raised. Justice Cooper then went on to make conclusory findings after
trial that Appellant had given false testimony based on this improper and unlawful cross-
examination.
6
$10,000 sanction on Appellant (hereinafter, “Sanctions Decision”). (See Appx. at
A11, Am. Compl. at ¶¶ 34-37.) However, just prior to entering the decision, Justice
Cooper admitted to personally disseminating a draft of that decision to the media,
which apparently included The New York Law Journal, The New York Post and The
Daily News. (See id.) This draft decision contained outright lies and other
disparaging assertions (collectively, the “Defamatory Statements”), including that:
Appellant was unfit to practice law (See Appx. at A11, Am. Compl. at
¶¶ 40-56);
Appellant acted inappropriately towards the Attorney for the Child by

making “postings” on the website www.harrietnewmancohen.com
calling her “greedy” among other things (see id. at ¶¶ 62-64);
Appellant had attempted to subject his child to “unnecessary medical

exams so that [he could] pursue an unfounded fixation or search for
material to use against [Ms. Comfort]” (see id. at ¶¶ 62-64);
Appellant had falsely accused Ms. Comfort of “neglect[ing] and

abu[ing]” the child (see id. at ¶¶ 65-68);
Appellant had used “his pro se statement to inflict harm … on [his]

child” (see id. at ¶¶ 71-76);
Appellant had deliberately “delayed” the proceedings and child custody

trial in Zappin v. Comfort (see id. at ¶¶ 71-76);
Appellant had written a handwritten note to Judge Anthony Epstein

during the proceedings in the District of Columbia with the words
“You’re Pathetic! Judicial Complaint forthcoming.” (see id. at ¶ 77);
Appellant had sent taunting e-mails to Ms. Comfort’s counsel, Robert

Wallack (see id. at ¶¶ 80-81);
7
Appellant had failed to pay Ms. Comfort child support as legally

required” (see id. at ¶¶ 82-83).
In looking to the motion papers underlying the September 18, 2015 Sanctions
Decision, there were no allegations, facts or issues referenced, much less raised
where a judicial determination was sought, that would have led to Justice Cooper’s
Defamatory Statements listed above.
Appellant initiated this lawsuit against Justice Cooper alleging, inter alia, that
Justice Cooper had defamed him by disseminating the Defamatory Statements in a
draft decision to the tabloid press. As a result of Justice Cooper reaching out to the
tabloid press to solicit publicly in a confidential child custody matter, the
Defamatory Statements were published in The New York Law Journal, The New
York Post and The Daily News, which were then recycled by various blogs and
websites. (See Appx. at A11, Am. Compl. at ¶¶ 40-56). As a result, Appellant was
fired from his job as an attorney at Mintz Levin Cohen Ferris Glovsky & Popeo, P.C.
(See id. at ¶ 42.) Moreover, as a result of losing his job, Appellant was prejudiced
because he lacked the financial means to hire counsel to represent him at the child
custody trial that commenced less than two (2) months later before Justice Cooper.
The District Court concluded that Justice Cooper had engaged in extrajudicial
conduct stripping him of judicial immunity by personally disseminating the draft
decision to the tabloid press. (See Appx. at A97, Feb. 2, 2018 Order and Opinion at
20-32.) However, the District Court dismissed Appellant’s Amended Complaint

8
asserting that Appellant was barred from challenging the falsity of Justice Cooper’s
Defamatory Statements based on the doctrine of collateral estoppel and the
September 18, 2015 Sanctions Decision. (See id. at 33-50.)
Appellant moved for reconsideration of the District Court’s February 2, 2018
Order and Opinion. (See District Ct. Dkt. Nos. 59-60). Specifically, Appellant
attached the underlying motion papers from Zappin v. Comfort that resulted in the
Sanctions Decision, which illustrated that there were no allegations, facts or issues
pertaining to the Defamatory Statements placed into issue for a determination by
Justice Cooper. (See id. at 60.) As a result, there was no identity of issues as to
these unlitigated Defamatory Statements precluding the application of collateral
estoppel. On May 18, 2018, the District Court issued an eight (8) page Order and
Opinion that substantively failed to address Appellant’s contentions raised in the
motion for reconsideration and denied the motion.
Appellant timely appealed. (See Appx. at A253, Notice of Appeal dated May
21, 2018.) He alleged on appeal, inter alia, that collateral estoppel could not be
applied to the Defamatory Statements since there were no allegations, facts or issues
placed at issue for determination by Justice Cooper pertaining to the Defamatory
Findings. (See Appeal Dkt. No. 35, Appellant’s Opening Brief.) Justice Cooper did
not dispute these facts either in the District Court or on appeal. (See id. at 42,
9
Appellee’s Response Brief.) As a result, there was no identity of issues and the
application of collateral estoppel was error. (See id. at 35.)
In its May 15, 2019 Summary Order, this Court failed to address Appellant’s
contentions or even make reference to Justice Cooper’s extrajudicial conduct. (See
May 15, 2019 Summary Order.) Instead, the Court cast Appellant’s claims as an
attempt to challenge and overturn the validity of the September 18, 2015 Sanctions
Decision. (See id.) In doing so, the Court fundamentally mischaracterized and
misapprehended the facts and claims in this appeal warranting reconsideration.
ARGUMENT
A. The Court Incorrectly Held that There Was an Identity of Issues in

Upholding the Application of Collateral Estoppel
It is black letter law that collateral estoppel bars re-litigation when “(1) the
identical issue was decided in the prior action and is decisive in the present action;
and (2) the party to be precluded from relitigating the issue had a full and fair
opportunity to contest the issue.” Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455
(N.Y. 1st Dept. 1985). With respect to the identify of issues prong, New York law
is clear that preclusive effect will only be given when the particular issue was
“actually litigated, squarely addressed and specifically decided.” Crystal Clear
Development, LLC v. Devon Architects of New York, P.C., 949 N.Y.S.3d 398 (N.Y.
2nd Dept. 2012) (emphasis added). To satisfy the “actually litigated” prong of the
test, the issue “must have been properly raised by the pleadings or otherwise placed
10
in issue … in the prior proceeding.” Downtown Acupuncture PC v. State Wide Ins.
Co., 21 N.Y.S. 548, 533 (N.Y. Kings Cnty. Civil Ct. 2015) (emphasis added). More
specifically, an “issue is ‘raised’ and ‘actually litigated’ for collateral estoppel
purposes when it is submitted for determination … and may be so submitted, inter
alia, by pleading, or on motion ….” Montoya v. JL Astoria Sound, Inc., 939
N.Y.S.2d 92, 95 (N.Y. 2nd Dept. 2012) (emphasis added).
In the Summary Order, this Court held that “[t]he factual findings in Cooper’s
sanctions decision were actually litigated in the course of motions by Harriet
Newman Cohen, the attorney for the child, and the cross-motion by Zappin to
disqualify Cohen.” (Summary Order at 3.) The Court’s characterization of the
motion papers in Zappin v. Comfort, however, is fundamentally incorrect. The
motion papers underlying the Sanctions Decision are conclusive that neither
Appellant, nor the Attorney for the Child raised any allegations, facts or issues
pertaining or relating to the Defamatory Statements. (See Appx. A149, Declaration
of Anthony Zappin, Excerpted Exhibits 2-11, Zappin and Cohen Motion Papers). In
order words, the Defamatory Statements were never raised in the briefing papers for
determination by Justice Cooper and, consequently, never previously litigated.
The Court erred by misapprehending the facts. As a result, the application of
collateral estoppel was improper because there was no identity of issues. The Court
should reconsider the Summary Order and reverse the decision of the District Court.
11
B. The Court Incorrectly Held that Appellant Had a Full and Fair
Opportunity to Litigate the Defamatory Statements
In the Summary Order, the Court concluded that with respect to the second
prong of the collateral estoppel test that Appellant had a full and fair opportunity to
litigate the Defamatory Statements because the Attorney for the Child “requested
sanctions in her initial motion papers and in her reply papers; and Zappin litigated
the issues in the trial court and on appeal.” (Summary Order at 3.) The Court’s
statement once again misapprehends the record. Appellant was never afforded
notice or an opportunity to contest the Defamatory Statements prior to Justice
Cooper disseminating the draft decision to the tabloid press or issuing the Sanctions
Decision, a fact not contested by Justice Cooper in this matter.
First, Justice Cooper imposed a sanction on Appellant solely for filing a
complaint against the Attorney for the Child’s expert and serving a subpoena on her
for records. This was explicitly conceded by him on the record in Zappin v. Comfort:
JUSTICE COOPER: You filed a bogus complaint against Dr. Metrikin … You
served a subpoena on Ms. Cohen. I sanctioned you for a
subpoena that was clearly unwarranted. That is what I
sanctioned you for. What I did was referred to the context
of a long ongoing history of total misbehavior.
(See Zappin v. Comfort Trial Tr. at 1667.) Thus, while it may be debatable whether
Appellant had notice that sanctions could be imposed for the complaint against Dr.
Metrikin and the subpoena to the Attorney for the Child, the record from Zappin v.
Comfort is apparent that he did not have notice or an opportunity to be heard with
12
respect to the Defamatory Statements that Justice Cooper himself characterized
“context” and not noticed findings. Without notice or an opportunity to be heard
with respect to the Defamatory Statements, Appellant did not have a full and fair
opportunity to litigate them precluding the application of collateral estoppel.
Second, it is black letter law that in applying collateral estoppel, “the issue
must have been material to the first action or proceeding and essential to the decision
rendered therein.” Ryan v. New York Telephone Co., 62 N.Y.2d 494, 500 (N.Y.
1984). In characterizing the Defamatory Statements as “context,” Justice Cooper
has conceded that the Defamatory Statements were neither material nor essential to
the imposition of the sanction. The application of collateral estoppel was improper.
Lastly, the Court misapprehended the facts in reaching in makings its
conclusion. Appellant did not “litigate [the Defamatory Statements] in the trial
court." (Summary Order at 2.) As detailed supra, there were no allegations, facts
or issues raised pertaining to the Defamatory Statements in either Appellant’s or the
Attorney for the Child’s motion papers. Appellant consequently did not have notice
or an opportunity to defend the Defamatory Statements.
Furthermore, the Court concluded that Appellant’s contention that he was
denied a full and fair opportunity to be heard because Justice Cooper issued the
Defamatory Statements and presided over the action was meritless. (See Summary
Order at 3.) The Court states that “it is not error for the district court to consider
13
Cooper’s familiarity with Zappin’s pattern of behavior.” (Id.) This conclusion
totally misses the point. The fact that Justice Cooper rendered the Defamatory
Statements must be considered in applying collateral estoppel where it was found
that he engaged in extrajudicial conduct. Here, Justice Cooper extrajudicially
disseminated the draft decision to the tabloid press with the admitted intention of
publicizing the Defamatory Statements to inflict reputational harm on Appellant and
to solicit press onto a confidential child custody matter pending before him. This
conduct raises questions about his impartiality that should have been assessed in
determining whether Appellant was afforded a full and fair opportunity to be heard.
Moreover, the Court concluded that “the papers attached to Cohen’s motions
reflect Justice Cooper’s previous consideration of sanctions for Zappin’s persistent
noncompliance with court orders, and repeated warnings for Zappin to desist from
his harassing and unprofessional conduct.” (Summary Order at 3-4.) This is yet
again a mischaracterization of the Zappin v. Comfort record. More importantly, this
conclusion does not address the key issue in this appeal as to whether Appellant was
given a full and fair opportunity to litigate the Defamatory Statements Justice
Cooper’s disseminated to the press in his draft decision, not the actual sanction itself.
Finally, the Court concluded in determining that Appellant had a full and fair
opportunity to litigate the Defamatory Statements that “[t]he judicial review
procedure in the First Department ensured that Zappin had a full and fair opportunity
14
to litigate the factual issues and protect his procedural rights.” (Summary Order at
4.) As acknowledged by the Court, Appellant contested the Defamatory Statements
on appeal to the First Department. (See id. at 3.) However, the First Department
failed to specifically address any of Appellant’s contentions as to the Defamatory
Statements on appeal, which were ancillary to the imposition of the sanction. See
Zappin v. Comfort, 49 N.Y.S.3d 6 (N.Y. 1st Dept. 2017). The fact that the First
Department failed to “specifically decide” Appellant’s contentions does not preclude
him from challenging the falsity or the application of collateral estoppel as to the
Defamatory Statements in this proceeding. See Crystal Clear, 949 N.Y.S.3d at 398.
In sum, the Court misapprehended the issues on appeal. The Court in essence
concluded Appellant had notice and an opportunity to be heard with respect to the
imposition of the actual sanction in the September 18, 2016 Sanction Decision. This
is not the issue in dispute in this matter. Rather, the central issue is whether
Appellant had notice and an opportunity to be heard with respect to the Defamatory
Statements, which were conceded to be ancillary, in the context of Justice Cooper’s
extrajudicial conduct of disseminating the draft decision to the tabloid press.
CONCLUSION
For the reasons above, the Court should grant Appellant’s petition for
rehearing and rehearing en banc. The Court should further reverse the District
Court’s dismissal of the Amended Complaint and remand this matter.
15
Dated: June 3, 2019

Huntington, WV
___________________________
ANTHONY JACOB ZAPPIN
1827 Washington Blvd.
Huntington, WV 25701
(843) 520-6303 (tel.)
anthony.zappin@gmail.com
Appellant
16
CERTIFICATE OF COMPLIANCE
This petition/brief complies with the page limitation established by Federal
Rule of Appellate Procedure 35(b)(2) in that it does not exceed fifteen (15) pages in
length, excluding the parts of the petition/brief exempted by Federal Rule of
Appellate Procedure 32(a)(7)(B)(iii). This petition/brief also complies with the
typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and (a)(6),
as it has been prepared in Microsoft Word using a proportioned spaced typeface of
14-point Times New Roman font.
Dated: June 3, 2019
_______________________________
Appellant-Plaintiff
17
CERTIFICATE OF SERVICE
I hereby certify that on June 3, 2019, I electronically filed the foregoing
Appellant’s Corrected Petition for Panel Rehearing and for Rehearing En Banc with
the Clerk of the Court for the United States Court of Appeals for the Second Circuit
by using the appellate CM/ECF system. The following participants in the case who
are registered CM/ECF users will be served by the appellate CM/ECF system:
Seth M. Rokosky
Assistant Solicitor General
Office of the New York State Attorney General
28 Liberty Street, 23rd Floor
New York, NY 10005
Counsel for Appellee Matthew F. Cooper
Dated: June 3, 2019
_______________________________
Appellant-Plaintiff, Pro Se
18
EXHIBIT A
Case
Case 18-1545,
18-1545, Document
Document 70,
66-1,
06/03/2019,
05/15/2019,
2578770,
2564091,
Page23
Page1ofof26
4
18‐1545
Zappin v. Cooper

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 15th day of May, two thousand nineteen.
4
5 PRESENT:
6 DENNIS JACOBS,
7 PIERRE N. LEVAL,
8 CHRISTOPHER F. DRONEY,
9 Circuit Judges.
10 _____________________________________
11
12 Anthony Jacob Zappin,
13
14 Plaintiff‐Appellant,
15
16 v. 18‐1545
17
18 Matthew F. Cooper, a Justice of the Supreme Court of
19 New York, in his official capacity,
20
21 Defendant‐Appellee.
22 _____________________________________
Case
Case 18-1545,
18-1545, Document
Document 70,
66-1,
06/03/2019,
05/15/2019,
2578770,
2564091,
Page24
Page2ofof26
4
1 FOR PLAINTIFF‐APPELLANT: Anthony Jacob Zappin, pro se,
2 Huntington, WV.
3
4 FOR DEFENDANT‐APPELLEE: Steven C. Wu, Deputy Solicitor
5 General, Seth M. Rokosky, Assistant
6 Solicitor General, for Letitia A.
7 James, Attorney General of the State
8 of New York, New York, NY.
9
Appeal from a judgment of the United States District Court for the Southern
District of New York (Failla, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Appellant Anthony Zappin, pro se, sued Justice Matthew Cooper, a state
matrimonial judge, for defamation, tortious interference, intentional infliction of
emotional distress, and prima facie tort under state law, and for denial of a fair
trial under 42 U.S.C. § 1983. Zappin alleged that Cooper disseminated a
sanctions decision that contained false, malicious, and improper factual findings,
which thus caused him to lose his job and denied him a fair trial during his child
custody case before Cooper. The district court dismissed the amended complaint
on collateral estoppel grounds because the factual findings in the sanctions
decision that Zappin alleged were false had already been litigated and affirmed
on appeal. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
“We review the grant of a motion to dismiss de novo, accepting as true all
factual claims in the complaint and drawing all reasonable inferences in the
plaintiff’s favor.” Fink v. Time Warner Cable, 714 F.3d 739, 740–41 (2d Cir. 2013).
Federal courts apply New York collateral estoppel law to New York state
court judgments. See Hoblock v. Albany Cty. Bd. of Elections, 422 F.3d 77, 93 (2d
Cir. 2005). “[C]ollateral estoppel precludes a party from relitigating an issue
which has previously been decided against him in a proceeding in which he had a
2
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fair opportunity to fully litigate the point,” when (1) “the identical issue
necessarily must have been decided in the prior action and be decisive of the
present action, and [(2)] the party to be precluded from relitigating the issue must
have had a full and fair opportunity to contest the prior determination.”
Kaufman v, Eli Lilly & Co., 482 N.E.2d 63, 67 (N.Y. 1985) (internal quotation
marks omitted); see also Vargas v. City of New York, 377 F.3d 200, 205–06 (2d Cir.
2004). Zappin is collaterally estopped from relitigating Cooper’s factual findings
in the sanctions decision.
(1) Identity of the Issues. The factual findings in Cooper’s sanctions
decision were actually litigated in the course of motions by Harriet Newman
Cohen, the attorney for the child, and the cross‐motion by Zappin to disqualify
Cohen.
As the First Department ruled, the sanctions decision was “amply
supported by the record,” and Zappin’s procedural arguments were meritless.
Zappin v. Comfort, 49 N.Y.S.3d 6, 6 (N.Y. App. Div. 1st Dep’t 2017).
(2) Full and Fair Opportunity. Zappin argues that he was given no notice
that Justice Cooper was considering sanctions or that he would make findings
about issues beyond the scope of Cohen’s motions. This argument is meritless.
Cohen requested sanctions in her initial motion papers and in her reply; and
Zappin litigated the issues in the trial court and on appeal.
Zappin argues that the district court erred by relying on the fact that
Cooper presided over the divorce action. But it is not error for the district court
to consider Cooper’s familiarity with Zappin’s pattern of behavior. See Curry v.
City of Syracuse, 316 F.3d 324, 332 (2d Cir. 2003) (noting the “the realities of the
litigation” are relevant to the determination whether a party had a full and fair
opportunity to litigate an issue (quoting Kosakow v. New Rochelle Radiology
Assocs., P.C., 274 F.3d 706, 734 (2d Cir. 2001))).
Zappin argues that Cooper never warned him that he could be subjected to
sanctions. However, the papers attached to Cohen’s motions reflect Justice
Cooper’s previous consideration of sanctions for Zappin’s persistent
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noncompliance with court orders, and repeated warnings for Zappin to desist
from his harassing and unprofessional conduct.
Zappin argues that Cooper was biased against him and fabricated his
factual findings. The judicial review procedure in the First Department ensured
that Zappin had a fair opportunity to litigate the factual issues and protect his
procedural rights. See Kremer v. Chem. Const. Corp., 456 U.S. 461, 484–85
(1982).
Zappin had a full and fair opportunity to challenge the state court’s
findings in his direct appeal; he cannot relitigate these issues in federal court.
Accordingly, Zappin fails to state any claim premised on the alleged falsity or
impropriety of the findings.
We have reviewed the remainder of Zappin’s arguments and find them to
be without merit. For the foregoing reasons, the judgment of the district court is
AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
4

Zappin V Cooper Petition For Rehearing and Rehearing en Banc

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Zappin V Cooper Petition For Rehearing and Rehearing en Banc

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Case 18-1545, Document 70, 06/03/2019, 2578770, Page1 of 26

UNITED STATES COURT OF APPEALS

ANTHONY JACOB ZAPPIN,

On Appeal from the United States District Court

APPELLANT’S CORRECTED PETITION FOR

Downtown Acupuncture PC v. State Wide Ins. Co., 21 N.Y.S. 548, 533

Zappin v. Comfort, 49 N.Y.S.3d 6 (N.Y. 1st Dept. 2017) ........................................15

on a litigant, but it papered-over and obscured Justice Matthew F. Cooper’s unethical

Cooper’s undisputed and admitted extrajudicial conduct of personally disseminating

a statutorily sealed draft matrimonial decision containing unlitigated and

intentionally defamatory assertions about Appellant to the tabloid press, which

court decision, something which finds no support whatsoever in the record.

bullying, terrorizing and needlessly humiliating litigants appearing in his courtroom.

MODERATOR (Attorney Judy White): I

JUSTICE COOPER: Not much.5

JUSTICE COOPER: There is nothing like

My new line, actually seems to work very

JUSTICE COOPER: My favorite question is

his ego and for kicks.

patently unlawful and extrajudicial conduct in Appellant’s personal divorce case.

Specifically, Justice Cooper fabricated disparaging assertions regarding Appellant

and distributed them in a draft decision to the press. He eventually published a

in which he imposed a $10,000 sanction on Appellant where the record is remarkably

intentionally and extrajudicially inflict harm on Appellant and Appellant’s child

unlawfully seeking to inflict harm on Appellant, but manufacturing a record and

fabricating findings to conceal his own judicial misconduct.

apparent and undisputed: (i) Justice Cooper engaged in extrajudicial conduct

stripping him of judicial immunity by disseminating a draft matrimonial decision to

application of collateral estoppel in this matter is entirely inappropriate.

perpetuates the ongoing cover-up of Justice Cooper’s misconduct in the Zappin v.

on February 11, 2014 (hereinafter, “Zappin v. Comfort”). The Zappin v. Comfort

conclusion of a proceeding in Zappin v. Comfort a proceeding on April 21, 2015,

assaulted, which resulted in Appellant being hospitalized with significant bruising

As an apparent result of Appellant’s Court of Claims action, Justice Kaplan

conduct in the Zappin v. Comfort proceeding, it was overwhelmingly apparent that

Justice Cooper issued a sanctions decision on September 18, 2015 imposing a

$10,000 sanction on Appellant (hereinafter, “Sanctions Decision”). (See Appx. at

Cooper admitted to personally disseminating a draft of that decision to the media,

disparaging assertions (collectively, the “Defamatory Statements”), including that:

Appellant acted inappropriately towards the Attorney for the Child by

Appellant had attempted to subject his child to “unnecessary medical

Appellant had falsely accused Ms. Comfort of “neglect[ing] and

Appellant had used “his pro se statement to inflict harm … on [his]

Appellant had deliberately “delayed” the proceedings and child custody

Appellant had written a handwritten note to Judge Anthony Epstein

Appellant had sent taunting e-mails to Ms. Comfort’s counsel, Robert

Appellant had failed to pay Ms. Comfort child support as legally

Defamatory Statements listed above.

Justice Cooper had defamed him by disseminating the Defamatory Statements in a

tabloid press to solicit publicly in a confidential child custody matter, the

conduct stripping him of judicial immunity by personally disseminating the draft

20-32.) However, the District Court dismissed Appellant’s Amended Complaint

Defamatory Statements based on the doctrine of collateral estoppel and the

September 18, 2015 Sanctions Decision. (See id. at 33-50.)

Appellant moved for reconsideration of the District Court’s February 2, 2018

pertaining to the Defamatory Statements placed into issue for a determination by

these unlitigated Defamatory Statements precluding the application of collateral

Opinion that substantively failed to address Appellant’s contentions raised in the

motion for reconsideration and denied the motion.

placed at issue for determination by Justice Cooper pertaining to the Defamatory

application of collateral estoppel was error. (See id. at 35.)

contentions or even make reference to Justice Cooper’s extrajudicial conduct. (See

misapprehended the facts and claims in this appeal warranting reconsideration.