New York Law and Vexatious or Nuisance Litigants

Jay Leiderman
By: Jay Leiderman
August 28 2016

Some people just wont stop suing for no reason at all other than they are miserable human beings.  They are known as vexatious litigants.  This is a short treatise on New York law and vexatious or nuisance litigants.

Disclaimer: none of this is legal advice, this is just the musings of an attorney that does not even practice in New York. I was asked a question about this issue and took about 10 minutes to look at the law behind it. Vexatious or nuisance litigants are a pox on the legal system.  The research was so accessible and clear that I felt I would take a few minutes more and write this post. I found it rather easy to explain to myself, so I’m hopeful that I can explain this to anyone that comes by this page. Take this for what it is worth, I’m a lawyer, but I’m neither licensed or versed in New York law. If you are actually involved in a nuisance lawsuit in New York, you should consult a New York attorney. Having said that, let’s begin.

Hypothetical

A lawsuit is brought against you for the purpose of nuisance, harassment, delay or other improper means

Let’s take a hypothetical example of an awful person who sues you just to be a nuisance, just to get you back for some perceived slight, even though he or she has no legal or factual basis to maintain a lawsuit. For example, you give testimony in court to a judge and that person does not like what you say. Unless they are found factually innocent after a hearing or trial, they are disallowed from suing you. You have what is called an absolute litigation privilege in every jurisdiction there is, including New York. See Panzella v. Bums, 169 A.D.2d 824 (N.Y. App. Div. 1991)

New York Law and Vexatious or nuisance litigants
VEXATIOUS LITIGANTS ARE A CANCER ON THE LEGAL SYSTEM

The privilege goes back all the way to common law in England, that’s how ingrained it is. See, e.g., Marsh v. Elsworth, 36 How. Pr. 532, 535 (N.Y. Sup. Ct. 1869) (citing Brook v. Montague, 79 Eng. Rep. 77 (K.B. 1606)); Mower v. Watson, 11 Vt. 536, 540-41 (1839) (citing Buckley v. Wood, 76 Eng. Rep. 888 (K.B. 1591) and Hodgson v. Scarlett, 171 Eng. Rep. 362 (C.P. 1817)).

What is a vexatious litigant?

Vexatious litigants are clearly and easily defined in New York. The case of Spremo v. Babchik, 155 Misc.2d 796, 589 N.Y.S.2d 1019, 1020 (N.Y.Sup.Ct.1992) is great for an easy and accessible case to read and under stand what vexatious litigants are. First and foremost, they are people that bring their own suits. It is presumed that no lawyer would file a frivolous suit without the possibility of facing discipline from the judge and the State Bar. Spremo, at page 804 and 805 says just that:

 

“An attorney representing him as an officer of the court would be bound by the Code of Professional Responsibility. He would be required to represent his client zealously, but within the bounds of the law. (Code of Professional Responsibility Canon 7.) He would not “[f]ile a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of the client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another.” (Code of Professional Responsibility DR 7-102 [A] [1] [22 NYCRR 1200.33 (a) (1)].) Violations of the code could readily be curbed by appropriate sanctions.”

 

new york law and vexatious or nuisance litigants
STOPPING VEXATIOUS LITIGANTS HAS NOW BECOME IMPORTANT TO ATTORNEY JAY LEIDERMAN OF VENTURA COUNTY CA

Someone that brings a lawsuit on their own behalf is called a pro per litigant. Here’s what the Spremo case, at page 802, says about pro per litigants filing frivolous or nuisance lawsuits:

 

“The right of access to the courts, however, is neither absolute nor unconditional. (In re Green, 669 F.2d 779 [DC Cir 1981].) Further, the right to appear pro se is not unlimited. (Muka v New York State Bar Assn., 120 Misc 2d 897; Muka v Hancock, Estabrook, Ryan, Shove & Hust, 120 Misc 2d 146; Matter of Winters v Gould, 143 Misc 2d 44.)”

and on page 803 the case goes on to say:

 

“Many courts have found it necessary to enjoin pro se litigants from commencing or continuing any further actions when it was found those litigants were abusing the judicial process. “The fact that one appears pro se is not a license to abuse the process of the Court and to use it without restraint as a weapon of harassment and libelous bombardment * * * when it becomes clear that the courts are being used as a vehicle of harassment by a `knowledgeable and articulate experienced pro se litigant’ * * * the issuance of an injunction is warranted.” (Kane v City of New York, 468 F Supp 586, 590-592 [SD NY 1979], affd 614 F.2d 1288 [2d Cir 1979]; see also,In re Martin-Trigona, 737 F.2d 1254 [2d Cir 1984], after remand 592 F Supp 1566 [D Conn 1984], affd 763 F.2d 140 [2d Cir 1985], cert denied 474 US 1061 [1986].)”

Moreover, on page 803, we find that:

 

“When pro se litigants have abused the judicial process, New York courts have limited the scope of their right to appear pro se in civil actions. In Matter of Rappaport (109 Misc 2d 640), a litigant’s disruptive courtroom practices caused the court to revoke his right to appear pro se. In Martin-Trigona v Capital Cities/ABC (145 Misc 2d 405) an abusive pro se litigant was enjoined from commencing or continuing any actions in the New York State courts on a pro se basis.”

In a case where someone is clearly abusing the judicial system to harass people, I would seek not only to get my own case dismissed, I would seek to get them declared a vexatious litigant so that they both can’t file nuisance, harassing, improper or vexatious suits against me, I would want that person declared vexatious because they are likely to do the same thing to others. Essentially, I would take it upon myself to put them out of business for good. If they have harassed you, they likely have, or will, harass others with litigation. Don’t let them. Fight back.

THERE ARE MANY PEJORATIVES TO USE FOR A VEXATIOUS LITIGANT. thEY ARE A SCURVY POX. THEY ARE THE COCKROACHES OF THE JUDICIAL SYSTEM AND SO FORTH.
THERE ARE MANY PEJORATIVES TO USE FOR A VEXATIOUS LITIGANT. THEY ARE A SCURVY POX. THEY ARE THE COCKROACHES OF THE JUDICIAL SYSTEM AND SO FORTH.

Conclusion: Get the case dismissed and get sanctions ($$$!) against the abusive litigant

The litigant we described at the beginning, the one who was trying to sue people for something they said to the court in the course and scope of litigation, could be declared a vexatious litigant or otherwise subject to sanctions, assuming they have not yet risen to the level of a vexatious litigant. If you have to get an attorney, it is possible the fees you expended will have to be paid by the nuisance litigant. There are other money and judicial sanctions available as well. Spremo is again illuminating in this regard (page 803-804):

In Sassower v Signorelli (99 AD2d 358 [2d Dept 1984]) the Second Department held that in light of plaintiff’s palpable abuse of judicial process, it was well within the judicial discretion of the IAS court to enjoin plaintiff from pursuing additional litigation against defendants and related parties in the absence of judicial approval. The “court will not tolerate the use of the legal system as a tool of harassment.” (Supra, at 359.)

Further, the Sassower Court noted “[A] litigious plaintiff pressing a frivolous claim can be extremely costly to the defendant and can waste an inordinate amount of court time, time that this court and the trial courts can ill afford to lose * * * Thus, when, as here, a litigant is abusing the judicial process by hagriding individuals solely out of ill will or spite, equity may enjoin such vexatious litigation.” (Supra, at 359.)

As to sanctions, ERIC TURKEWITZ, THE TURKEWITZ LAW FIRM wrote an amazingly helpful piece that easily allows the non-New York lawyer to understand what can happen to a plaintiff who files a frivolous suit. His post is here: http://www.newyorkpersonalinjuryattorneyblog.com/?s=Sanctions+in+New+York+for+Frivolous+Suit and I recommend that you read the whole thing. Here’s what his post says:

Turning to the issue of costs and sanctions, the Court notes that conduct is frivolous and can be sanctioned under 22 NYCRR 130-1.1 if it is “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” or it is “undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another” (see Stow v Stow, Matter of Gordon v Marrone, Tyree Bros. Envtl. Servs. v Ferguson Propeller, all in the 2nd Dept.). “Making claims of colorable merit can constitute frivolous conduct within the meaning of 22 NYCRR 130-1.1 if ‘undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another’.” Specifically, Section 130-1.1 of the Rules of the Chief Administrator of the Courts states in pertinent part:

(a) The court, in its discretion, may award to any party in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct as defined in this Part.

(c) For the purposes of this Part, conduct is frivolous if:

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.

As expressed in Park Health Center v Country Wide Ins. Co., (N.Y.City Civ.Ct.,2003):

“In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues, the circumstances under which the conduct took place, including the time available for investigating the legal and factual basis for the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.” ( Id.) [22 NYCRR 130-1.1(c)].

While the factors listed above are precatory in determining sanctionable conduct, “what remedy [to impose] is dictated by considerations of fairness and equity.” (Levy v. Carol Management Corp. 1st Dept.). Moreover, “[s]anctions are retributive in that they punish past conduct. They are also goal oriented, in that they are useful in deterring future frivolous conduct not only by the particular parties, but also by the bar at large. The goals include preventing the waste of judicial resources, and deterring vexatious litigation and dilatory or malicious litigation tactics. citation omitted” (Levy,). The measure of sanctions should be proportionate to the amount sought in the lawsuit, the culpability of the party’s conduct and prejudice to the adversary. ( See Vicom v. Silverwood, 4th Dept.).

new york law and vexatious litigants
YOU CAN HAVE A VEXATIOUS LITIGANT BARRED FROM COURT FOREVER – YOU SHOULD DO IT – PREVENT THEM FROM FRIVOLOUS HARASSMENT OF OTHER PEOPLE

So, to summarize, judges are not amused in the least by vexatious litigants and nuisance lawsuits. Seek sanctions and a bar to the person filing similar suits. If that does not deter the pest, you may have a claim for malicious prosecution against THEM!  Their litigation, after all, is basically false allegations and extortion.  Most of all, don’t let a vexations litigant bother you. That is what they want. You hold the upper hand in frivolous cases. The deck is stacked against you if you are a vexatious litigant.  Remember that. The law does not suffer nonsense lawsuits lightly. If someone has sued you for purposes of harassment, delay, to be a nuisance, for improper factual or legal reason, or for any other improper purpose, go get ‘em!

I hope these musings were helpful. Again, this is not legal advice, just my musings. If you can add to these thoughts, especially if you are a New York attorney, I would love to hear from you in the comments section.

 

 

new york law and vexatious or nuisance litigants
The consequences of a criminal conviction can be harsh and many can be unseen or unrealized for years

 

new york law and vexatious or nuisance litigants

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