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In re Davey

Supreme Court of New York, First Department

October 8, 2013

In the Matter of Peter F. Davey, an attorney and counselor-at-law: Departmental Disciplinary Committee for the First Judicial Department, Petitioner, Peter F. Davey, Respondent.

Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Peter F. Davey, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the First Judicial Department on December 23, 1968.

Jorge Dopico, Chief Counsel, Departmental Disciplinary Committee, New York (Elisabeth A. Palladino, of counsel), for petitioner.

Respondent pro se.

Angela M. Mazzarelli, Justice Presiding, Richard T. Andrias, Karla Moskowitz, Rosalyn H. Richter, Sallie Manzanet-Daniels, Justices.

PER CURIAM

Respondent Peter F. Davey was admitted to the practice of law in the State of New York by the First Judicial Department on December 23, 1968. At all times relevant to this proceeding, respondent maintained an office for the practice of law within the First Judicial Department.

This disciplinary proceedings stem from respondent's conduct in connection with a divorce action instituted by his ex-wife. On June 21, 2000, the ex-wife reported an alleged incident of domestic violence by respondent to the police. Respondent was arrested and the ex-wife obtained a temporary order of protection against him, excluding respondent from the marital home and from contact with their then-minor children. The criminal charges against respondent were later dropped.

On July 14, 2000, the ex-wife instituted divorce proceedings in Supreme Court, Westchester County. On July 6, 2004, Supreme Court entered a final judgment of divorce, and by order dated November 17, 2004, the court directed the distribution of assets. In 2001, respondent filed an action against the ex-wife, her brother, her attorneys and their respective law firms, alleging, inter alia, fraud, perjury and abuse of power, in connection with his arrest. Supreme Court dismissed the complaint against the brother and the attorneys for failure to state a cause of action and this Court affirmed the order on appeal (Davey v Dolan, 308 A.D.2d 330 [1st Dept 2003]). A similar action against the ex-wife herself was dismissed.

On September 15, 2003, respondent brought a second action against the ex-wife's attorneys, alleging, inter alia, false arrest, malicious prosecution, and defamation. In December 2003, he filed a complaint against the ex-wife's sister, his own son, and one of the ex-wife's attorneys and his firm. In a series of orders the court dismissed the action, in part on the grounds of res judicata and collateral estoppel. Further, the court ordered that respondent obtain permission from the court before bringing further litigation related to the matter.

Respondent also brought an action in the Court of Claims against the Justice who presided over the divorce action and the State of New York, alleging fraud and collusion. That action was dismissed on the grounds of lack of subject matter jurisdiction and judicial immunity. Thereafter, respondent filed an action in the United States District Court for the Southern District of New York against the ex-wife and her sister, claiming fraud, collusion and deceit in connection with the divorce action. The court dismissed the complaint and permanently enjoined respondent from pursuing federal litigation relating to his divorce without first obtaining authorization from the District Court and enjoined him from pursuing further state litigation without appending the District Court's opinion to his initial filings.

The District Court found that sanctions were appropriate because respondent's claims were without merit and respondent knew or should have known that he was precluded from recycling previously dismissed claims and that identical claims against the ex-wife Dolan could not prevail. The court found that respondent's commencement of the federal action, after being barred from commencing such an action in state court, further evidenced his bad faith and intent to harass the parties. In affirming the judgment of the District Court, the Second Circuit found that the "imposition of sanctions was appropriate because [respondent]... has [] repeatedly pursued meritless claims despite being warned by courts at every turn to cease the bad faith litigation" (Davey v Dolan, 292 Fed.Appx 127, 128 [2d Cir. 2008]). By a judgment entered September 12, 2007, respondent was directed to reimburse the ex-wife for her attorneys fees and costs in the amount of $8, 167.20. Respondent has not paid this sanction.

Meanwhile, in September 2005, respondent filed a third complaint against one of the ex- wife's attorneys and her law firm, and named as a defendant the buyer of the marital residence. On March 10, 2006, the court found that the claims against the attorney and her firm were barred by res judicata and ordered a hearing to determine the amount of costs, attorneys' fees, and sanctions to be imposed on respondent.

In November 2005, respondent moved, in Westchester County Supreme Court, to vacate the divorce judgment and the short form order directing the distribution of assets. The ex-wife cross-moved to dismiss the motion and for costs, counsel fees, and sanctions. The court denied respondent's motion and granted the ex-wife's cross motion, finding that respondent had exhausted his appellate remedies and "cannot now... re-present the same arguments he intended to present in his unperfected appeals." The court also denied respondent's motion to vacate on the merits, finding that he failed to make a prima facie showing of misconduct. The court granted the ex-wife's cross motion for sanctions in the amount of $10, 000, based upon the meritless nature of respondent's application and his habit of initiating baseless legal proceedings, and imposed costs, in the form of $2, 100 in counsel fees. The order and judgment was affirmed on appeal (Davey v Davey, 44 A.D.3d 701 [2d Dept 2007]). Respondent has not paid the sanction.

Finally, by order entered on October 16, 2007, Supreme Court held respondent in civil contempt for refusing to comply with the 2004 order which required him to obtain the court's permission before filing litigation relating to his divorce, and ordered him to pay counsel fees and costs totaling $28, ...


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