Salvatore Romanelli, Greenlawn, NY, appellant pro se.
Schlesinger, LLP, Garden City, NY (Steven R. Schlesinger, pro
se, and Sarah D. Ragusa of counsel), nonparty-respondent pro
se, and for plaintiffs-respondents.
Radler, LLP, Uniondale, NY (Cheryl F. Korman and Todd Belous
of counsel), for nonparty-respondents Jon N. Santemma and
Santemma & Deutsch.
M. LEVENTHAL, J.P. L. PRISCILLA HALL SYLVIA O. HINDS-RADIX
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action, inter alia, to recover damages for breach of
fiduciary duty, the defendant appeals from (1) an order of
the Supreme Court, Nassau County (Adams, J.), entered October
16, 2014, which denied his motion to punish the plaintiffs
and nonparties Steven R. Schlesinger, Jaspan Schlesinger,
LLP, Jon N. Santemma, and Santemma & Deutsch for criminal
and civil contempt of court, authorize the New York State
Grievance Committee for the 10th Judicial District to
investigate those nonparties, and require the plaintiffs and
those nonparties to comply with the terms of a so-ordered
stipulation dated July 31, 1997, and granted those branches
of the cross motion of the plaintiffs and the nonparties
Steven R. Schlesinger and Jaspan Schlesinger, LLP, which were
to permanently enjoin him from filing any additional papers
in the instant action or a related action he commenced in
2008 entitled Romanelli v DiSilvio (2008 NY Slip Op
32860[U] [Sup Ct, Nassau County]), or from commencing any new
action against the plaintiffs or nonparties Steven R.
Schlesinger and Jaspan Schlesinger, LLP, without prior court
approval, and (2) an order of the same court dated April 7,
2015, which denied his application for court approval to
serve and file a motion pursuant to CPLR 5525(c) to settle a
transcript dated February 7, 1997.
that on the Court's own motion, the notice of appeal from
the order dated April 7, 2015, is deemed to be an application
for leave to appeal, and leave to appeal is granted
(see CPLR 5701[c]); and it is further, ORDERED that
the orders are affirmed; and it is further, ORDERED that one
bill of costs is awarded to the plaintiffs-respondents and
the nonparty-respondents, appearing separately and filing
defendant (hereinafter the appellant) and the plaintiffs, who
are the appellant's sisters (hereinafter the sisters),
are the former members of a partnership known as Tri-Equity
Partnership that acquired title to real property in Lynbrook.
After a dispute arose between the parties, the sisters
commenced this action against the appellant in 1996, which
was resolved by a stipulation of settlement that was
so-ordered by the Supreme Court on July 31, 1997.
Subsequently, the appellant commenced a separate action
against the sisters in 2008 entitled Romanelli v
DiSilvio (2008 NY Slip Op 32860[U] [Sup Ct, Nassau
County]) (hereinafter the 2008 Action), based upon his
allegations that the sisters breached certain terms of the
stipulation of settlement. In 2011, the Supreme Court, inter
alia, granted the sisters' motion for summary judgment
dismissing the complaint in the 2008 Action. In the instant
action, the appellant essentially moves for the same relief
he sought against the sisters in the 2008 Action. He also
moves for relief against the nonparties, Steven R.
Schlesinger, Jaspan Schlesinger, LLP, Jon N. Santemma, and
Santemma & Deutsch (hereinafter the
nonparty-respondents), although he never commenced a
third-party action against them.
CPLR 304(a), an action in Supreme Court is ordinarily
commenced "by filing a summons and complaint or summons
with notice." The failure to file the initial papers
necessary to commence an action constitutes a nonwaivable,
jurisdictional defect, rendering the action a nullity
(see Wesco Ins. Co. v Vinson, 137 A.D.3d 1114, 1115;
O'Brien v Contreras, 126 A.D.3d 958). Here, the
appellant undertook no steps to commence a third-party
action, despite his unilateral amendment of the caption of
the action in his motion papers to include the nonparty
respondents as "third-party defendants."
Consequently, the jurisdiction of the court was never invoked
and the purported third-party action was a nullity (see
Wesco Ins. Co. v Vinson, 137 A.D.3d at 1115;
O'Brien v Contreras, 126 A.D.3d at 958). As a
result, all relief sought by the appellant against the
nonparty-respondents was properly denied.
appellant's claims that the sisters failed to comply with
the terms of the so-ordered stipulation dated July 31, 1997,
were raised and finally determined in the 2008 Action. Those
claims are, therefore, barred by the doctrines of res
judicata (see O'Brien v City of Syracuse, 54
N.Y.2d 353, 357; Matter of City of New York v
Schmitt, 50 A.D.3d 1032, 1033-1034) and collateral
estoppel (see Buechel v Bain, 97 N.Y.2d 295,
303-304; Gilberg v Barbieri, 53 N.Y.2d 285,
291-292), and the Supreme Court properly denied the relief
the appellant sought against the sisters.
policy mandates free access to the courts and zealous
advocacy is an essential component of our legal system"
(Sassower v Signorelli, 99 A.D.2d 358, 359).
However, where there has been an abuse of judicial process,
the court may enjoin a litigant from further actions or
motion practice without prior written approval of the court
(see Scholar v Timinisky, 87 A.D.3d 577, 579;
Dimery v Ulster Sav. Bank, 82 A.D.3d 1034, 1035;
Vogelgesang v Vogelgesang, 71 A.D.3d 1132, 1134;
Mancini v Mancini, 269 A.D.2d 366; Berson v
Berson, 265 A.D.2d 439, 440; Sassower v
Signorelli, 99 A.D.2d at 359-360). Since an abuse of the
judicial process occurred in this case, the Supreme Court
properly granted those branches of the cross motion of the
plaintiffs and the nonparties Steven R. Schlesinger and
Jaspan Schlesinger, LLP, which were to permanently enjoin the
appellant from filing any additional papers in the instant
action or the 2008 Action, or from commencing any new action
against the plaintiffs or those nonparties, without prior
court approval (see Scholar v Timinisky, 87 A.D.3d
at 579; Dimery v Ulster Sav. Bank, 82 A.D.3d at
1035; Vogelgesang v Vogelgesang, 71 A.D.3d at 1134;
Mancini v Mancini, 269 A.D.2d at 366-367; Berson
v Berson, 265 A.D.2d at 440; Sassower v
Signorelli, 99 A.D.2d at 359-360).
the Supreme Court did not improvidently exercise its
discretion in denying the appellant's application, in
effect, for leave to serve and file a motion pursuant to CPLR
5525(c), to settle ...