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December 19, 2000


The opinion of the court was delivered by: Mcmahon, District Judge.



Plaintiff, Eugene Cappello ("Cappello"), is a party to an ongoing matrimonial action that is pending in the Supreme Court, Westchester County, New York. (Compl. ¶ 19; see also, letter from A.A.G. Carolyn Cairns Olsen to Hon. Denny Chin of July 25, 2000.) Defendant, Hon. Joan B. Lefkowitz, has from time to time presided over the divorce proceedings.

On January 26, 1999, Plaintiff entered into a stipulation obligating him to make two payments of $37,500 each to his wife: the first on February 22, 1999, and the second on March 22, 1999. (Transcript of Mar. 1, 1999 Sentencing Appearance before Hon. Joan B. Lefkowitz at 4, Cappello v. Cappello, index no. 16699/97 ("Mar.Transcript").) When Plaintiff appeared in court on February 22, 1999 without the first payment, Justice Lefkowitz ordered Plaintiff to make that payment in court on March 1, 1999. (Mar. Transcript at 7.) During the week between February 22 and March 1, 1999, Plaintiff's attorney moved for a stay of enforcement, based upon an inability to pay, which was denied by Justice Lefkowitz from the bench on March 1, 1999. (Mar. Transcript at 4.) Plaintiff appeared in court before Justice Lefkowitz on March 1, 1999 and failed to make the ordered payment. (Mar. Transcript at 3.) Before incarcerating Plaintiff, Justice Lefkowitz stated "there ha[d] been no change of circumstance since he agreed to . . . pay, and nothing has been paid. There is nothing here that I can even forgive him on." (Mar. Transcript at 6-7.) The Judge then found Plaintiff in contempt of her order to pay and sentenced him to 90 days in the Westchester County Jail. (Mar. Transcript at 7.)

Although Plaintiff does not express a clear understanding of his obligations, it appears from the record that the stipulation was never withdrawn or amended, nor was any order arising from it ever vacated. (Mar. Transcript at 7; see also Transcript of Sept. 22, 2000 Appearance before Hon. Colleen McMahon at 8, Cappello v. The State of New York, et al., index no. 00CV4072 ("Sept.Transcript").) Moreover, Plaintiff's attorney stated at the very beginning of the proceedings on March 1 that Plaintiff's son had accompanied him to court to drive Plaintiff's car home "[i]f Mr. Cappello is incarcerated today," (Mar. Transcript at 3), which strongly suggests that incarceration came as no surprise to Plaintiff.

Plaintiff served 15 days of his 90 day sentence. (Compl. ¶ 24.) He was released on March 15, 1999. (See id.)

Plaintiff appealed the order holding him in contempt. On July 31, 2000, the Appellate Division reversed Justice Lefkowitz' contempt order, holding that she was "without jurisdiction to punish the defendant for contempt." Cappelto v. Cappello, 274 A.D.2d 539, 712 N.Y.S.2d 42, 2000 N YSlip Op. 07195 (2000), (emphasis added).

Plaintiff then filed a complaint against his wife's attorneys with defendant Grievance Committee for making an oral, rather than a written, application for contempt to Justice Lefkowitz, and alleging a conspiracy between them to cause Plaintiff harm. (Compl. ¶ 26.) According to the complaint, defendant Fuchs, an attorney with the Grievance Committee, informed Plaintiff that his complaint would not be pursued. (Compl. ¶ 26.)

Plaintiff filed the instant complaint on May 31, 2000, naming the State of New York, the Grievance Committee and its attorney, Freda Fixler Fuchs, the County of Westchester, the Norwood Jackson Correctional Facility, and Hon. Joan B. Lefkowitz as defendants. Insofar as the complaint seeks to hold Justice Lefkowitz personally liable for her erroneous contempt ruling, Plaintiff's claims arise under 42 U.S.C. § 1983. (Compl. ¶¶ 1, 2.) Cappello alleges that Justice Lefkowitz, acting under color of law as a New York State Supreme Court Justice, deprived him of the "rights, privileges, and immunities secured by the Constitution of the United States" when she summarily ordered him to be incarcerated for contempt on March 1, 1999. (Compl. ¶ 31.)

Grounds for Decision

Plaintiff bases his § 1983 claim on the statements made by the Appellate Division in overturning the contempt, specifically, that Justice Lefkowitz was without jurisdiction to hold Plaintiff in contempt on the oral application of his wife's counsel, and that she failed to comply with procedural rules that such an application be made in writing. (Id.)*fn1 Plaintiff contests his obligation to pay under the stipulation agreement, but his protestations are not supported by the record. Rather, the record indicates that Plaintiff was clearly in violation of a court order to pay when he was found in contempt, and that the only issue before this Court is whether Justice Lefkowitz' failure to afford him proper written notice before holding him in contempt incarcerating him renders her personally liable in damages. This Court finds that it does not.


It is well-settled that judges are immune from suits for damages arising out judicial acts. See Bradley v. Fisher, 80 U.S. 335, 13 Wall. 335, 20 L.Ed. 646 (1871); Pierson v. Bay, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Stump v. Sparkman, 435 U.S. 349, 359, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Forrester v. White, 484 U.S. 219, 225, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988); Mireles v. Waco, 502 U.S. 9, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991); Tucker v. Outwater, 118 F.3d 930, 935 (2nd Cir. 1997). This immunity dates to medieval times. See Forrester, 484 U.S. at 225, 108 S.Ct. 538. Judges are frequently called upon to make decisions which disappoint "some of the most intense and ungovernable desires that people can have." Id. at 226, 108 S.Ct. 538. Personal liability for each decision would result in an "avalanche of suits" that would necessarily diminish the judge's authority to settle disputes. Bradley, 80 U.S. at 347, 13 Wall. 335. Indeed, society's increased reliance on the litigation process could not have arisen without some protection for judges for determinations made in their judicial capacity.

In addition, the availability of appellate review now ensures that "[m]ost judicial mistakes or wrongs are open to correction through ordinary mechanisms of review, which are largely free of the harmful siderules effects inevitably associated with exposing judges to personal liability." Forrester, 484 U.S. at 227, 108 S.Ct. 538. Finally, a judge can be removed from office by imported peachment for egregious behavior. See Bradley, 80 U.S. at 350, 13 Wall. 335 (judge who acts "with partiality, or maliciously, or corruptly, or arbitrarily, or oppressively . . . may be called to an account by impeachment . . ."). Appellate review and and impeachment are the appropriate avenues for ...

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