The opinion of the court was delivered by: ARTHUR SPATT, District Judge Page 2
MEMORANDUM OF DECISION AND ORDER
On February 24, 2003, Linda Sharp ("Sharp" or the "plaintiff") and
Sharp Realty, LLC ("Sharp Realty"), a limited liability corporation
incorporated under the State of New York, commenced this action against
John C. Bivona ("Bivona"), Neil R. Cahn ("Cahn"), Kenneth J. Glassman
("Glassman"), and her husband Michael Sharp ("husband"), alleging 16
causes of action. Presently before the Court are the following motions:
(1) a motion by defendant Bivona to dismiss the complaint pursuant to
Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure
("Fed.R. Civ. P."); and (2) a motion by defendant Glassman for summary
judgment dismissing the complaint.
The following facts are taken from the complaint which the Court notes
is redundant and somewhat confusing. In 1999, Michael Sharp commenced a
matrimonial action against the plaintiff in the Suffolk County Supreme
Court. The complaint describes various incidents from the divorce
proceedings involving an apartment complex in Brooklyn that the plaintiff
and Michael Sharp purchased with their marital assets in 1995.
Sharp claims that, on March 1, 2001, there was a "backroom deal made in
chambers of Justice Daniel J. Loughlin . . . in which full control
of the family business surreptitiously was turned over to [her] husband"
Michael Sharp without the plaintiff's knowledge and consent. Sharp
further claims that this "backroom deal" was implemented by Michael
Sharp, his attorney Cahn, and her attorney Glassman so as "to deprive the
plaintiff of monies attributable to the Brooklyn property."
The plaintiff further alleges that, although Glassman was the
plaintiff's attorney in the divorce proceedings, he was appointed as
receiver as a result of the "backroom deal." Sharp contends that Glassman
refused "to provide an accounting of his financial activities as receiver
with respect to gross receipts, business expenditures, and the like. . .
. " The plaintiff further claims that, in October or November 2001,
Justice Loughlin signed an ex parte order authorizing Glassman to
continue to serve as receiver. On an unspecified date, after the
plaintiff objected in open court to the "backroom deal" and the ex parte
order, Justice Loughlin recused himself. Shortly thereafter, without any
explanation, two other justices recused themselves from the plaintiff's
matrimonial proceedings. Finally, the divorce action was reassigned to
Justice John C. Bivona.
Sharp alleges that Justice Bivona knew that Cahn and Glassman were
misappropriating funds from the marital business. In August 2002, Justice
Bivona issued an order relieving a temporary receiver, Harvey McClelland,
who had been appointed by Justice Loughlin, and a second order appointing
a new temporary receiver, Everett W. George. Despite these orders, the
plaintiff claims that Justice
Bivona permitted Glassman to act as receiver until December 2002. Sharp
further alleges that Justice Bivona knew that Glassman collected but
failed to account for receivership assets; dissipated assets of the
marital accounts; failed to provide her with information; failed to
account or make disclosures to the court; and failed to deposit
receivership funds in an interest-bearing account.
In addition, the plaintiff asserts that "on November 14, 2002, January
6, 2003, January 15, 2003, January 27, 2003, [the] Defendant John Bivona
failed to be patient, dignified, and courteous to [the plaintiff but]
instead [sic] threatened her, subjected her to mistreatment and possible
dispossession of property contrary to his responsibilities. . . . "She
also claims that Justice Bivona "failed to order complete and full
discovery . . . and failed to take or initiate appropriate disciplinary
measures against [the] lawyers in this case for unprofessional conduct"
and deprived the plaintiff of her "appellate due process rights."
Furthermore, Sharp alleges that between November 2002 and January 2003,
Justice Bivona initiated several ex parte communications with the other
Among other things, the plaintiff alleges a cause of action for fraud
and claims that she was denied due process and equal protection. Sharp
seeks monetary damages in the amount of more than $58,000,000 and also
seeks an injunction against Justice Bivona preventing him from presiding
over her divorce proceeding.
A. As to Glassman's Motion for Summary Judgment
As an initial matter, the Court notes that Glassman's papers in support
of his motion for summary judgment are not in compliance with Local
Rule 7.1 which reads:
Except as otherwise permitted by the court, all
motions and all opposition thereto shall be supported
by a memorandum of law, setting forth the points and
authorities relied upon in support of or in opposition
to the motion, and divided, under appropriate
headings, into as many parts as there are points to be
determined. Willful failure to comply with this rule
may be deemed sufficient cause for the denial of a
motion or for the granting of a motion by default.
This Rule is not a mere formality. Rather, this rule must be observed to
inform a party of the factual basis of his adversary's arguments. In
addition, in failing to comply with this rule, it places the burden on
the Court to construct the legal arguments and to conduct the legal
research that is the responsibility of the parties. See V.W. Broad v. DKP
Corp., No. 97 CV 2029, 1998 U.S. Dist. LEXIS 12942, at *3 (S.D.N.Y. Aug.
19, 1998) ("Plaintiff's failure to oppose [the motion at issue] would
require the [the Court] to construct plaintiff's legal arguments for him
in order to reach the merits of defendant's motion. This is an
unacceptable burden to place upon a court."). Thus, because of Glassman's
noncompliance with Local Rule 7.1, his motion for summary judgment is
denied without prejudice with leave to refile upon compliance with the
Local Rules and the Court's Individual Rules.
B. As to Justice Bivona's Motion to ...