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Ponterio v. Kaye

January 22, 2007

FRANK V. PONTERIO, PLAINTIFF,
v.
JUDITH S. KAYE, CHIEF JUDGE OF THE STATE OF NEW YORK, JONATHAN LIPPMAN, CHIEF ADMINISTRATIVE JUDGE OF THE COURTS, JOHN T. BUCKLEY, PRESIDING JUSTICE OF THE APPELLATE DIVISION, FIRST DEPARTMENT, A. GAIL PRUDENTI, PRESIDING JUSTICE, APPELLATE DIVISION, SECOND DEPARTMENT, ANTHONY V. CARDONA, PRESIDING JUSTICE, APPELLATE DIVISION, THIRD DEPARTMENT, F. PIGOTT, JR., PRESIDING JUSTICE, APPELLATE DIVISION, FOURTH DEPARTMENT, AND THE ADMINISTRATIVE BOARD OF THE COURTS, DEFENDANTS.



The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge

OPINION AND ORDER

Plaintiff Frank V. Ponterio ("Plaintiff" or "Ponterio"), a retired New York State Supreme Court Justice, brings this action pursuant to 42 U.S.C. § 1983. His claims arise out of the Administrative Board of the Courts'*fn1 (the "Board's") 2003 and 2004 denials of his applications for recertification as a retired Justice. Ponterio alleges that 1) the Board's 2003 denial of his recertification was a retaliatory act that violated his rights under the First Amendment of the United States Constitution; 2) the Board's failure to set forth reasons for its denial effectively constituted a "denial of access to the courts"; and 3) the Board's 2004 denial of his application for recertification violated his rights to Equal Protection under the Fourteenth Amendment. Ponterio also brings a state law claim of retaliation pursuant to N.Y. EXECUTIVE LAW § 296. Ponterio has moved for preliminary injunctive relief, i.e. an order directing the Board to recertify him as a retired Justice and thus place him back on the bench.

Defendants Judge Judith S. Kaye, Judge Jonathan Lippman, Justice John T. Buckley, Justice A. Gail Prudenti, Justice Anthony V. Cardona, Justice Eugene F. Pigott, and the Administrative Board of the Courts (collectively, "Defendants") have moved to dismiss Ponterio's claims pursuant to FED. R. CIV. P. 12(b)(1) and FED. R. CIV. P. 12(b)(6), on the grounds that 1) Rooker-Feldman doctrine bars Plaintiff's claims, 2) Younger abstention doctrine bars Plaintiff's claims, 3) res judicata and collateral estoppel bar Plaintiff's claims, and 4) Plaintiff's claims fail as a matter of law.

At the outset, I am denying Plaintiff's request for injunctive relief in its entirety because Plaintiff does not show a likelihood of "success on the merits" on his claims, for the reasons outlined below. See Moore v. Consol. Edison Co. of N.Y., Inc., 409 F.3d 506, 510 (2d Cir. 2005).

Because Plaintiff's First Amendment claim and state law retaliation claim are barred by res judicata and collateral estoppel principles, and alternatively fail on their merits, I must dismiss those claims. Because Plaintiff's "denial of access" claim fails on its merits, I must dismiss that claim. Plaintiff's Equal Protection claim is a much closer question, and for now, that branch of Defendants' motion to dismiss is denied.

I.BACKGROUND

The following facts are taken from Plaintiff's Complaint, as well as opinions and relevant documents from Plaintiff's prior state court litigation.*fn2

A. Ponterio's 1998 Reassignment

On November 6, 1996, Plaintiff Ponterio was elected to a 14-year term as a Justice of the Supreme Court in the Second Judicial District, effective January 1, 1997. Plaintiff's Complaint ¶ 4 ("Pl. Compl."). Plaintiff was assigned to the matrimonial part of Supreme Court in Richmond County. Pl. Compl. ¶ 9; Ponterio v. Kaye, 25 A.D.3d 865, 866 (N.Y. App. Div. 3rd Dep't 2006). Subsequently, a second matrimonial part was created and both parts were consolidated. Ponterio v. Kaye, 25 A.D.3d 865, 866. Plaintiff's part was transformed into a general civil part. Id. Plaintiff was removed from his matrimonial part in September 1998. Ponterio v. Kaye, Index No. 400281/04, at 4 (N.Y. Sup. Ct. May 17, 2004) (Friedman, J.), at Speres Aff., Ex. B. Plaintiff heard civil matters and a limited number of matrimonial cases. Ponterio v. Kaye, 25 A.D.3d 865, 866.

Plaintiff alleges generally that his reassignment to a civil part stemmed not from the needs of judicial reorganization, but from an accusation of gender bias levelled at him by Justice Betty Weinberg Ellerin. Pl. Compl. ¶ 10; Ponterio v. Kaye at 866-67. Ponterio alleges that on March 6, 1998, Hon. Michael Pesce, the Administrative Judge for his court, told him that he had a communication from defendant Jonathan Lippman ("Lippman"), Chief Administrative Judge of the Courts. The communication was that Ponterio "was being summarily removed from the matrimonial part based upon an accusation of gender bias," and "if [Ponterio] resisted such removal, he could jeopardize his opportunity for recertification."*fn3 Pl. Compl. ¶ 10; see also Plaintiff's Complaint, December 1, 2003, Ponterio v. Kaye, Index No. 400281/04 ("Pl. State Compl."), ¶ 21. Ponterio alleges more specifically, but without any corroboration, that Justice Ellerin "sought to replace [him] with a female judge of her choosing in order to influence decisions in matrimonial cases to favor female litigants." Pl. Compl. ¶ 11; Pl. State Compl. ¶ 22, 23.

Ponterio alleges that on April 16, 1998, he informed Court of Appeals Judge Vito Titone, allegedly "acting as an intermediary," that he would expose to the press Justice Ellerin's "scheme to influence judicial decisions" by putting a woman in the matrimonial part if he was removed from the matrimonial part. Pl. Compl. ¶ 12.*fn4 Ponterio additionally alleges that Appellate Division Justice Guy Mangano threatened him with "consequences" if he exposed Justice Ellerin's scheme to the press. Pl. Compl. ¶ 13.*fn5

Around this time, by Ponterio's account, Defendants Chief Judge Kaye ("Kaye") and Lippman gave him "assurances" that his reassignment "was made in the ordinary course," that "there were no complaints against him," that "Justice Ellerin had been instructed to cease her efforts to have [him] removed," and that there would be "no future adverse consequences for [his] resisting a reassignment." Pl. State Compl. ¶¶ 24, 27, 28, 31, 36. After an April 17, 1998 telephone call with Judge Kaye, presumably during which he was given such "assurances," Ponterio, "fearing he would jeopardize his opportunity for certification, gave up his plan to expose Justice Ellerin's scheme." Pl. Compl. ¶ 14; see also Pl. State Compl. ¶¶ 24, 27, 28, 31, 36. As noted above, Ponterio was removed from his matrimonial part in September 1998. Ponterio v. Kaye, Index No. 400281/04, at 4, at Speres Aff., Ex. B.

B. Ponterio's 2001 Certification and Subsequent Denials of Recertification

Ponterio reached the mandatory retirement age of 70 in 2001.*fn6 He applied for certification and was certified by the Board as a retired Justice for a two-year term beginning on January 1, 2002. Ponterio v. Kaye, 25 A.D.3d at 867; Ponterio v. Kaye, Index No. 400281/04, at 3.

On February 7, 2003, Judge Lippman advised Ponterio by letter that he was eligible for a recertification for a second two-year term. Ponterio v. Kaye, Index No. 400281/04, at 3. Ponterio completed the application and the required mental and physical examinations. Id.; Pl. Compl. ¶ 16. However, the Richmond County Bar Association did not recommend Ponterio's recertification. Ponterio v. Kaye, 25 A.D.3d at 867; Plaintiff's Opposition to Motion to Dismiss ("Pl. Opp."), November 28, 2006, at 3.*fn7 On September 30, 2003, the Board declined to recertify Ponterio for a second two-year term. Pl. Compl.

¶ 17; Pl. State Compl. ¶ 12.*fn8 By Ponterio's account, no reasons were given for his denial.

Pl. Compl. ¶ 17, 18.

On May 28, 2004, Ponterio wrote Judge Lippman asking for application forms for recertification. Affidavit of John Eiseman ("Eiseman Aff."), November 28, 2006, at Ex.

H. On June 28, 2004, Ponterio wrote Judge Kaye stating his belief that the prior denial of certification was not a permanent bar to his application and offering to serve without compensation. Eiseman Aff., Ex. H; Pl. Compl. ¶ 19. On August 16, 2004, Judge Lippman wrote Ponterio informing him that his letters were considered by the Board, and that the Board declined to reconsider its denial of his application. Eiseman Aff., Ex. I. Ponterio alleges that he was the only retired Justice denied the opportunity to apply for recertification in 2004, out of at least 30 eligible Justices. Pl. Compl. ¶ 39.

C. Ponterio's State Court Action

On December 1, 2003, Ponterio brought an action in New York State Supreme Court, alleging 1) that his reassignment constituted employment discrimination based on sex, in violation of N.Y. EXECUTIVE LAW § 296; 2) that Judges Lippman and Kaye's 1998 "assurances" constituted intentional misrepresentation; 3) that Judges Lippman and Kaye's 1998 "assurances" constituted breach of fiduciary duty; and 4) that the Board's 2003 denial of recertification constituted unlawful retaliation for his 1998 "complain[ts] to defendants [Kaye] and [Lippman] concerning Justice Ellerin's efforts to replace him with a female judge..." See Ponterio v. Kaye, 25 A.D.3d at 867; Pl. State Compl., e.g. at ¶ 42.

Defendants characterize Ponterio's state action as a "hybrid Article 78 proceeding/damage action." Eiseman Aff. ¶ 20.*fn9 Regarding Ponterio's first three claims, he sought monetary damages. Pl. State Compl., p. 6, ΒΆΒΆ 1-3. Regarding Ponterio's claim that the 2003 denial of his recertification constituted unlawful retaliation, Ponterio sought monetary damages and an injunction annulling the ...


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