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FALOW v. CASELLA

March 19, 1997

HOWARD M. THALER and WILLIAM B. FALOW, Plaintiffs, against GARY L. CASELLA, individually and in his official capacity as Chief Counsel to the Grievance Committee for the Ninth Judicial District, and MARYANN YANARELLA, individually and in her official capacity as a staff attorney to the Grievance Committee for the Ninth Judicial District, Defendants.


The opinion of the court was delivered by: CONNER

 CONNER, Senior D.J.:

 Plaintiffs Howard Thaler ("Thaler") and William Falow ("Falow"), both attorneys, have brought this action under 42 U.S.C. § 1983 against Gary Casella, Chief Counsel to the Grievance Committee to the Ninth Judicial District ("Grievance Committee"), and Maryann Yanarella, staff attorney to the Grievance Committee, individually as well as in their official capacities. Plaintiffs allege that defendants' conduct in connection with the Grievance Committee's investigation and recommendation of disciplinary charges against plaintiffs was tortious, and violated plaintiffs' Fourteenth Amendment right to due process as well as various provisions of New York's Judiciary Code, Disciplinary Rules and Ethics Code. Defendants have moved for dismissal for failure to state a claim under FED. R. CIV. P. 12(b)(6), or in the alternative for summary judgment under FED. R. CIV. P. 56.

 BACKGROUND1

 Plaintiffs current difficulties began in 1987 when the Grievance Committee, upon receiving complaints that plaintiffs had participated in fraudulent real estate transactions, began an investigation pursuant to section 691.4 of the New York Rules of Court. *fn2" Defendants now allege that plaintiffs perjured themselves before the Grievance Committee and submitted false and misleading information in response to the complaints. On November 6, 1990, the Grievance Committee recommended that plaintiffs be suspended from practicing law *fn3" and requested authorization to commence formal disciplinary proceedings. *fn4" At that time, defendants had not yet filed charges of professional misconduct. (These were not filed until May 8, 1992.)

 On June 10, 1991, the Appellate Division, Second Department, authorized disciplinary proceedings against plaintiffs and temporarily suspended them from practicing law. On August 19, 1991, the Appellate Division granted plaintiffs' motion for reargument, but only to the extent of vacating their interim suspensions.

 Plaintiffs allege that the Appellate Division suspended them temporarily based upon various "ex parte communications" from defendants Casella, Chief Counsel to the Grievance Committee, and Maryann Yanarella, staff attorney to the Grievance Committee. Mr. Falow claims that in of December 1992, upon examination of the Appellate Division court file on his case, he discovered a letter dated May 23, 1991 from Ms. Yanarella to Diana Maxfield Kearse, the principal law assistant to the Presiding Justice of the Appellate Division, which stated in its entirety: "Enclosed as per your request, is the information on the above referenced attorney [William B. Falow]." *fn5" (Exh. A to 1993 Yanarella Aff. now Exh. B to 1995 Yanarella Aff.). Although the content of the referenced "enclosures" has not been disclosed to the Court, defendants maintain that plaintiffs are not entitled to the material, discussing the possibility that it might have been a confidential report seeking permission to instigate disciplinary proceedings. (1993 Yanarella Aff. P 4). With regard to the May 23rd letter, Yanarella averred in 1992 that she has no recollection of having a "conversation" with the law clerk of the Appellate Division, and that she believes what the Court requested were documents from a prior disciplinary proceeding, which were irrelevant to the current proceeding. (December 16, 1992 Yanarella Aff.)

 Plaintiffs also claim that the Appellate Division maintained "a file with respect to each of their cases which contained information to which they were denied access." Pl. Br. p. 8. (This allegation is identical to their 1993 allegation that the Clerk of the Appellate Division said that "secret files" were being maintained on them at the Clerk's Office. Defendants in 1993 denied that plaintiffs were denied access to any "private files.")

 On May 8, 1992, plaintiffs were served with formal disciplinary charges, the specific nature of which were not disclosed in the parties' papers. In December 1992, Mr. Falow moved the Appellate Division to dismiss the disciplinary proceedings, alleging that the authorization for those proceedings, having been obtained via "ex parte communications," violated due process. In January 1993, Mr. Thaler made a similar motion. The Appellate Division denied both motions, without providing a specific basis for its decisions, and the New York Court of Appeals denied plaintiffs' request for leave to appeal the denial of the motions on the ground that the decisions were interlocutory. A special referee has been appointed to hear the disciplinary cases against each plaintiff. There is no claim that the referee has been shown any so-called "secret" materials.

 On September 1, 1993, plaintiffs filed a complaint in the Eastern District of New York, arguing that defendants' use of "ex parte communications" to secure authorization to commence disciplinary proceedings and the delay before the filing of formal charges violated their due process rights, and that section 691.4 of the New York Rules of Court was facially unconstitutional. Plaintiffs sought a temporary restraining order barring the prosecution of disciplinary proceedings and an order giving them access to the "secret," "confidential and private" files. On September 8, the Eastern District denied the motion for a temporary restraining order. Then, on May 18, 1994, the Eastern District dismissed plaintiff's complaint, which had requested an injunction blocking the disciplinary proceedings, access to any "ex parte" communications," and ten million dollars in damages. The Court found that it lacked jurisdiction under the Rooker-Feldman doctrine, since a decision by it would have the practical effect of allowing a federal court to undertake appellate review of the state court's determination of plaintiff's constitutional claims. In the alternative, the Court found that it was compelled to abstain from interfering with an ongoing state proceeding under the Younger abstention doctrine.

 Claim one alleges that plaintiffs rights to due process were violated as a result of three separate "ex parte" communications by defendants to the Appellate Division. The first alleged communication is a 1990 letter which they now claim not to have received and which they characterize as an improper request to "calendar" Thaler's and Falow's motions together. This action is the first time plaintiffs' have brought allegations regarding this letter. *fn6" In addition to violating plaintiffs' due process rights, defendants' sending of the letter allegedly violated plaintiffs' "right to a separate adjudication on the separate and individual merits of their causes," Compl. P 17, as well at N.Y. Jud. L. § 90(6), since formal charges had not yet been filed. The second communication relied upon by plaintiffs is the May 23rd letter, discussed supra. The third alleged communication from defendants to the Appellate Division was "a 'sealed' file on plaintiff Falow which contained material from a 1979 complaint made against Falow to the Grievance Committee wherein Falow had been exonerated after a hearing." Compl. P 31. Plaintiffs allege this transmission was in violation of N.Y. JUD. L. § 90(10) regarding the treatment of sealed files. They also allege that defendants were engaged in an ongoing conspiracy to conceal the fact of their "ex parte" communications and a pattern of making and/or receiving "ex parte" communications in violation of various rules of ethics.

 Claim two merely repeats and realleges the first claim, except that it recites that these actions were taken "in excess and outside the scope of [defendants'] lawful authority." Compl. PP 58-60. Claim four recites the same alleged "ex parte" communications, and alleges that they violated Due Process and N.Y. CODE PROF. RESP. DR 1-104A and DR 7-110B as well as EC 7-35. The other five claims allege that defendants' "ex parte" communications violated N.Y. JUD. L. § 90(10) and various provisions of N.Y. Prof. Rules and Ethical Code, and further constituted tortious conduct.

 On January 23, 1996, defendants moved this court to dismiss this action, or in the alternative, for a summary judgment, on the basis that: (1) we lack jurisdiction over this matter under the Rooker-Feldman doctrine; or (2) we are compelled to abstain from deciding the action for reasons of comity; or (3) we are bound by the doctrines of res judicata or collateral estoppel to follow the ...


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