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Davey v. Dolan

September 26, 2006

PETER F. DAVEY, PLAINTIFF,
v.
REGINA A. DOLAN AND MARY R. DAVEY, DEFENDANTS.



The opinion of the court was delivered by: Richard J. Holwell, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Peter F. Davey ("plaintiff"), an attorney proceeding pro se, brings this diversity action against defendants Regina A. Dolan and Mary R. Davey. The Complaint alleges various claims for relief relating to the events surrounding his divorce. Defendants have moved separately to dismiss the Complaint for failure to state a claim upon which relief can be granted, see Fed. R. Civ. P. Rule 12(b)(6), and for reimbursement of legal fees and expenses under 28 U.S.C. § 1927.

For the reasons set forth below, the Court grants defendants' motions [10, 13] and dismisses plaintiff's claims with prejudice.*fn1

BACKGROUND

The following undisputed facts are taken from plaintiff's Complaint and from prior court proceedings of which the Court may take judicial notice. Plaintiff brings this action against his former wife, defendant Mary R. Davey, and her sister, defendant Regina A. Dolan, due to events stemming from dissolution of his marriage. Plaintiff and Mary Davey were married and resided together as husband and wife until June 21, 2000. (Compl. ¶ 10.) On June 21, 2000, Mary Davey telephoned the police to report an alleged incident of domestic violence. (See Compl. ¶¶ 41, 50.) Plaintiff was arrested as a result of this incident. (See Compl. ¶¶ 54, 56.)

As a result of this arrest, on or about July 7, 2000, Mary Davey obtained a temporary order of protection from New York Family Court excluding plaintiff from the marital household and from contact with his minor children. (See Compl. ¶ 76.) The criminal charges against plaintiff were dropped on July 10. (Id.)

Mary Davey instituted divorce proceedings against plaintiff on July 14, 2000. Davey v. Davey, N.Y. Sup. Ct. Westchester Cty. Index No. 10437/00, Complaint July 14, 2000. The issue of fault in the divorce was tried before Acting Justice Bruce E. Tolbert in a jury trial from January 29 to February 1, 2001. Justice Tolbert granted a directed verdict in Mary Davey's favor. The decision was reversed by the Appellate Division on April 1, 2002. Davey v. Davey, 739 N.Y.S.2d 629 (N.Y. App. Div. 2002). The issue of fault was tried again in June 2002 before Justice J. Emmett Murphy from June 3 to June 11, 2001, and resulted in a unanimous jury verdict for Mary Davey.

Plaintiff alleges that Mary Davey gave contradictory testimony during the two trials and that her testimony is therefore perjurious. Plaintiff has attached the testimony in question to his Complaint as exhibits. (Compl. Exs. A, B). Mary Davey maintains that her answer at the original trial was sardonic and that plaintiff is misreading her testimony.

The remainder of the divorce action proceeded over the next several years, and on July 6, 2004, the New York Supreme Court, Acting Justice Fred L. Shapiro, entered a final judgment of divorce. Davey v. Davey, No. 10437/00 (New York Sup. Ct. Westchester Cty. July 12, 2004) (Kelly Decl., Nov. 3, 2005, Ex. 2). This decision was affirmed by the Appellate Division on May 13, 2005. Davey v. Davey, No. M25321 (N.Y. App. Div. May 13, 2005) (Davey Reply Aff., Ex. 3). The plaintiff then proceeded to sue the divorce judge, Justice Shapiro, and the State of New York in the New York Court of Claims. The Court of Claims dismissed the claim against Justice Shapiro for lack of subject matter jurisdiction and dismissed the claim against New York State under the doctrine of judicial immunity on July 14, 2005. Davey v. New York, No. 110503 (N.Y. Ct. Cl. July 14, 2005) (Kelly Decl., Nov. 3, 2005, Ex. 13). This decision was affirmed by the Appellate Division on July 8, 2006. Davey v. State of New York, 817 N.Y.S.2d 918 (N.Y. App. Div. 2006)

On November 30, 2001, while the divorce action was still pending, plaintiff filed a collateral complaint nearly identical to the instant Complaint against Mary Davey, her brother Kevin J. Dolan, her attorneys Mary F. Kelly and Bruce Bendish, and their respective law firms. Davey v. Dolan, N.Y. Sup. Ct. New York Cty. Index No. 112002/01, Complaint Nov. 30, 2001 (hereinafter, "November 2001 Action") (Kelly Decl., Nov. 3, 2005, Ex. 3). That complaint, like the instant one, alleged that Mary Davey made false statements to police officers leading to plaintiff's arrest for domestic assault, that she did so in order to gain an advantage in planned divorce proceedings, and that her testimony at the two trials was contradictory and perjurious. Additionally, the complaint sought relief against Kevin Dolan for aiding Mary Davey during the incidents surrounding plaintiff's arrest and divorce and for testifying against him at trial. The complaint sought relief in the sum of two million dollars.

On April 19, 2002, the New York County Supreme Court held that Bruce Bendish and his firm, while named in the caption, were never properly added as parties. Davey v. Dolan, No. 112002/01 (N.Y. Sup. Ct. New York Cty. Apr. 19, 2002) (Kelly Decl., Nov. 3, 2005, Ex. 6; Tompkins Decl., Ex. B.). The court also dismissed the claims against Kevin Dolan in the November 2001 Action, holding that there was no cognizable cause of action against Kevin Dolan for testifying against plaintiff at trial or for aiding his sister during her divorce. The court likewise dismissed plaintiff's claims against Mary Kelly and her firm for failure to state a cognizable cause of action. The court's decision was affirmed by the Appellate Division on September 4, 2003. Davey v. Dolan, 764 N.Y.S.2d 181 (N.Y. App. Div. 2003) (Kelly Decl., Nov. 3, 2005, Ex. 8; Tompkins Decl., Ex. C). On April 26, 2006, the Westchester County Supreme Court, Justice Nicholas Colabella, granted summary judgment for Mary Davey, the sole remaining defendant in the November 2001 Action. Davey v. Dolan, No. 7000-03 (N.Y. Sup. Ct. Cty. of Westchester Apr. 26, 2006).

On September 15, 2003, plaintiff sued Mary Kelly, Bruce Bendish, and their firms again, this time alleging "false arrest, malicious prosecution, abuse of process, defamation, fraud, etc." Davey v. Bendish, N.Y. Sup. Ct. New York Cty. Index No. 116183/03 (hereinafter "September 2003 Action").

On December 11, 2003, plaintiff decided to try yet again against the Dolan family, filing a second collateral complaint Mary Davey's sister Regina Dolan and his own son Keith P. Davey, and bringing additional claims against Bruce Bendish and his firm. Davey v. Bendish, N.Y. Sup. Ct. New York Cty. Index No. 109975/03, Complaint Dec. 11, 2003 (hereinafter "December 2003 Action"). The complaint alleged that Keith Davey and Regina Dolan had aided and enabled Mary Davey during plaintiff's arrest and divorce proceeding. Plaintiff apparently got more ambitious; this complaint sought relief in the amount of five million dollars.

On April 2, 2004, the Supreme Court, Justice Joan A. Madden, dismissed Regina Dolan from the December 2003 Action because of plaintiff's failure to properly serve the defendant. Davey v. Bendish, No. 109975/03 (N.Y. Sup. Ct. New York Cty. Apr. 2, 2004), appeal dismissed by Order ...


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