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,
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[,] ...