Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

LEWITTES v. LOBIS

August 19, 2004.

DAVID I. LEWITTES, Plaintiff,
v.
JUSTICE JOAN B. LOBIS, KENNETH DAVID BURROWS, and BENDER, BURROWS & ROSENTHAL, L.L.P., Defendants.



The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge

REPORT AND RECOMMENDATION

To the Honorable Jed S. Rakoff, United States District Judge:

Plaintiff David Lewittes brings this action against New York State Supreme Court Justice Joan Lobis, Kenneth David Burrows, and Burrows' law firm, Bender Burrows & Rosenthal, L.L.P. ("BBR"), pursuant to 42 U.S.C. § 1983. (Dkt. No. 15: Amended Compl.)*fn1 Presently before this Court is defendants' summary judgment motion and plaintiff's cross motion for partial summary judgment. (Dkt. Nos. 21-23, 26-31, 34-37.) For the reasons set forth below, the Court should grant summary judgment in favor of all defendants. FACTS

  Lewittes' Allegations Against Defendant Lobis

  In 2002, Justice Lobis presided over a matrimonial action for divorce between Lewittes and his ex-wife, Marilyn Blume. (Dkt. No. 15: Am. Compl. ¶ 8.) Lobis signed a judgment terminating the matrimonial action on August 19, 2002. (Am. Compl. ¶ 9.) Three days later, Blume brought an application before Justice Lobis by order to show cause, which Justice Lobis signed. (Am. Compl. ¶¶ 10-11.) According to Lewittes, the order "deprived [Lewittes] of his rights, privileges, and immunities under the Constitution and laws in that it, in the absence of due process, deprived plaintiff of his right to liberty, specifically the right of companionship, care, and management of his children, as a parent, and also, without due process of law, deprived plaintiff of his property right and his right to equal protection under the law." (Am. Compl. ¶ 11; see also id. ¶ 19.)*fn2

  Lewittes acknowledges the legal doctrine that judges have absolute immunity from civil suits, but Lewittes argues that Justice Lobis is not immune from this suit because, by entertaining Blume's application three days after termination of the matrimonial action, she was acting in the "clear absence of jurisdiction." (Am. Compl. ¶¶ 6, 11.) Lewittes asserts that "a judge is denied immunity when the judge has acted in the clear absence of jurisdiction and must have known that he was acting in the clear absence of jurisdiction." (Am. Compl. ¶ 6.) Lewittes argues that "three days after Lobis signed the Judgment terminating the matrimonial action, there was no action between Blume and [Lewittes]. Blume never commenced a new action. . . . There, accordingly, was a clear absence of jurisdiction, and any judge, having, three days earlier, signed a judgment terminating the action, must have known that there was a clear lack of subject-matter jurisdiction." (Am. Compl. ¶¶ 12-13.)

  Lewitte's Allegations Against Defendants Burrows and BBR

  Lewittes' amended complaint seeks damages from Burrows as "a co-conspirator or through joint efforts with Lobis, both for such deprivations for which Lobis has no judicial immunity and for deprivations for which Lobis herself has immunity from a suit for damages. Damages from BB&R are sought arising from Burrow's actions as a member of that firm, from in or about May 2003 to date." (Am. Compl. ¶ 20.) Specifically Lewittes challenges Justice Lobis' orders that he pay Burrows' fees as guardian ad litem for Lewittes' children. (Am. Compl. ¶¶ 7-31, 34-39.)*fn3

  ANALYSIS

  I. SUMMARY JUDGMENT STANDARDS IN SECTION 1983 CASES*fn4 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R. Civ. P. 56(c); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).

  The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment — here, defendants. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S. Ct. at 2552-53.

  To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986). Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R. Civ. P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S. Ct. at 1356. In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S. Ct. at 2513; see also, e.g., Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 36; Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d at 1223. The Court draws all inferences in favor of the nonmoving party — here, Lewittes — only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S. Ct. 489 (1987). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 37.

  In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S. Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S. Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.