Executor of the New York Estate of Celia Cates, Philip Barash et al v. Pressley & Pressley, P.A. et al

Filing 38

MEMORANDUM AND OPINION. For the reasons stated herein, plaintiffs' motion is denied in its entirety. Defendants' motion for attorneys' fees and costs is denied. Defendants' motion for a litigation injunction is granted. A separat e document will be issued by the Court setting forth the terms of the litigation injunction. Nothing in the injunction shall be construed as having any effect on plaintiffs' ability to file an appeal before the United States Court of Appeals for the Second Circuit, or to bring a lawsuit in this District unrelated to the subject matter of this litigation namely, plaintiffs may bring lawsuits unrelated to the management and administration of the Irving G. Kates Trust. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/7/2013. (O'Donnell, Kaitlin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-CV-3221 (JFB)(ARL)
_____________________

EXECUTOR OF THE NEW YORK ESTATE OF CELIA KATES, PHILIP BARASH,
BENEFICIARY OF THE IRVING G. KATES NEW YORK TRUST, ET AL.,
Plaintiffs,
VERSUS

PRESSLEY & PRESSLEY, P.A. AND JAMES G. PRESSLEY, JR.,
Defendants.
___________________
MEMORANDUM AND ORDER
February 7, 2013
___________________

treble damages for actions that took place in
the Florida Probate Court.

Joseph F. Bianco, District Judge:
The issues presently before this Court
are whether plaintiffs should be enjoined
from filing any further actions in this Court
arising out of the management and
administration of the Irving G. Kates Trust,
and whether defendants should be awarded
attorneys’ fees and costs for defending
against this frivolous lawsuit.

By letter dated August 15, 2011,
defendants moved for a sua sponte order
dismissing plaintiffs’ complaint in its
entirety pursuant to Federal Rules of Civil
Procedure
12(b)(1)
and
12(b)(6).
Defendants also sought an injunction
prohibiting plaintiffs from filing any further
actions in the United States District Court
for the Eastern District of New York arising
out of the management and administration of
the Irving G. Kates Trust, and for attorneys’
fees and costs.

Plaintiffs Philip Barash (“P. Barash”), as
Executor of the New York Estate of Celia
Kates, and Sandra Barash (“S. Barash”), as
Beneficiary of the Irving G. Kates New
York Trust, proceeding pro se, brought the
above-captioned action against defendants
Pressley & Pressley, P.A. and James G.
Pressley, Jr. (“Pressley”) (collectively, the
“defendants”), alleging a violation of New
York Judiciary Law § 487 and seeking

As noted in the Court’s March 22, 2012
Memorandum and Order, plaintiffs are no
strangers to this Court. In fact, this is P.
Barash’s fourth attempt to litigate claims
arising from the management and
1

No. 14. The parties fully briefed these and
other issues. In its March 22, 2012
Memorandum and Order, the Court granted
defendants’ motion to dismiss in its entirety.
Ex’r of the N.Y. Estate of Celia Kates, Philip
Barash, et al. v. Pressley et al. No. 11-CV3221 (JFB)(ARL), 2012 WL 976067
(E.D.N.Y. Mar. 22, 2012). In particular, the
Court concluded that it lacked subject matter
jurisdiction over this case under (1) the
probate exception to diversity jurisdiction,
and (2) the Rooker-Feldman doctrine. Id. at
*8-10. The Court held, in the alternative,
that the claims warranted dismissal under
the doctrines of res judicata and collateral
estoppel. Id. at *11-13. In addition, the
Court determined that the claim under
Section 487 of the Judiciary Law was barred
by the statute of limitations, and further, was
not a plausible claim. Id. at *14.

administration of the Irving G. Kates Trust
in this Court. See Barash v. N. Trust Corp.,
et al., 07-CV-5208 (JFB)(ARL); Trustee N.
Trust Bank of Florida, N.A. v. Estate of
Celia Kates, by its Ex’r Philip Barash and
Sandra Barash, et al., 04-CV-5295 (DRH);
Ex’r, Estate of Celia Kates, Philip Barash,
et al. v. N. Trust Bank, N.A., 04-CV-5153
(DRH). Two of the previous cases were
dismissed for lack of subject matter
jurisdiction pursuant to the probate
exception to federal diversity jurisdiction.
See Mem. of Decision and Order, Ex’r,
Estate of Celia Kates, Philip Barash, et al. v.
N. Trust Bank, N.A., No. 04-CV-5153
(DRH) (E.D.N.Y. Nov. 17, 2005), ECF. No.
47; Barash v. N. Trust Corp., 07-CV-5208
(JFB)(ARL), 2009 WL 605182, (E.D.N.Y.
Mar. 6, 2009). Judgment was entered on
May 7, 2009 in the 2007 case, and plaintiff
has not appealed that decision. The third
case, 04-CV-5295 (DRH), was removed by
P. Barash and S. Barash to this Court from
the Probate Division of the Palm Beach
County, Florida Circuit Court. Judge Hurley
remanded that case to the Florida court
because, inter alia, the federal court lacked
subject matter jurisdiction pursuant to the
probate exception. See Order, dated March
29, 2005, Trustee N. Trust Bank of Florida,
N.A. v. Estate of Celia Kates, by its Ex’r
Philip Barash and Sandra Barash, et al., 04CV-5295 (DRH), (E.D.N.Y Mar. 29, 2005),
ECF. No. 22.

Although defendants raised the issue of
sanctions (including a litigation injunction)
in their August 15, 2011 letter motion,
(Defs.’ Letter of Aug. 15, 2011 at 1, 4), the
Court determined that it must give plaintiffs
a full opportunity to be heard before
imposing any sanctions. Therefore, an Order
to Show Cause was issued on April 30, 2012
to plaintiffs, affording them an opportunity
to be heard as to why the requested
sanctions (including a litigation injunction)
should not be granted. See Order, dated
April 30, 2012, Ex’r of the N.Y. Estate of
Celia Kates, Philip Barash, et al. v.
Pressley, et al. 11-CV-3221 (JFB)(ARL)
(E.D.N.Y. Apr. 30, 2012), ECF. No. 26. In
turn, plaintiffs filed their “Motion to Obtain
Relief from the Judgment of this Court dated
March 22, 2012 pursuant to Federal Rules of
Civil Procedure Rule 60. Motion for
Summary Judgment This Motion Shall
Serve in order to Economize the Court’s
Time, to Show Cause Why Sanctions
Should Not Be Imposed” (hereinafter
“plaintiffs’ motion”). (Pls.’ Mot. to Obtain

In an abundance of caution, this Court
issued an Order, dated October 6, 2011,
which, among other requisites, required
plaintiffs to show cause as to why the Court
had subject matter jurisdiction to adjudicate
their claims and why their claims should not
be deemed barred by the doctrine of res
judicata. See Order, dated October 6, 2011,
Ex’r of Estate of Celia Kates, Philip Barash,
et al. v. Pressley, et al. 11-CV-3221
(JFB)(ARL) (E.D.N.Y. Oct. 6, 2011), ECF.
2

Relief and/or for Summ. J (“Pls.’ Mot.”).)
Succinctly put, plaintiffs’ response to the
Order to Show Cause is yet another attempt
to re-litigate claims concerning the alleged
mismanagement of the Irving G. Kates
Trust.

Order such that the Court finds “in favor of
the Plaintiffs for the base amount of the
attorney fees removed, $388,000,” (id.); (6)
consider its prior filings as proper for
summary judgment, (id. 29-30); and (7)
consider several claims already raised in the
prior litigations concerning defendant’s
alleged fraudulent conduct, (id. at 29), and
other courts’ judgments, (id. at 30-32).

For the reasons set forth herein,
defendants’ motion for an injunction is
granted, but the motion for attorneys’ fees
and costs is denied. Plaintiffs’ cross-motions
are denied as frivolous.

Defendants, in response, submitted a
letter arguing that plaintiffs not only failed
to respond to the Court’s directive to show
cause as to why sanctions (in the form of an
injunction or the payment of attorneys’ fees
and costs) should not be issued against them,
but they went one “audaci[ous]” step further
by moving for summary judgment in an
action that has already been dismissed, and
by seeking $388,000 in “untrebled” damages
against Pressley. (Defs.’ Letter of July 2,
2012 at 2.) Based on plaintiffs’ failure to
respond to the Court’s direct order, along
with their failure to abide by two prior
judges’ orders instructing them against
commencing additional actions against
Northern Trust, defendants assert that (1)
sanctions against plaintiffs are warranted,
and (2) defendant James Pressley should be
reimbursed for his attorneys’ fees. (Id.)

I. BACKGROUND
The facts and procedural history
underlying this action are set out in the
Court’s March 22, 2012 Opinion, Ex’r of
N.Y. Estate of Celia Kates, Philip Barash, et
al. v. Pressley & Pressley, P.A. & James G.
Pressley, Jr., No. 11-CV-3221 (JFB)(ARL),
2012 WL 976067 (E.D.N.Y. Mar. 22, 2012),
familiarity with which is assumed. The
Court will only recount the factual and
procedural backgrounds necessary to place
the current issues in context.
In their response to the Court’s Order to
Show Cause, plaintiffs move the Court to (1)
re-review plaintiffs’ complaint, exhibits, and
all of their prior claims and filings because
“[plaintiffs] do not believe that the rush to
dismissal of this case is equitable,” (Pls.’
Mot. at 28);1 (2) “set an injunction if it so
wishes,” (id.); (3) deny the issuance of
sanctions against plaintiffs, (id. at 29); (4)
grant attorneys’ fees to plaintiffs “minus the
punitive damage amount for violation of the
American rule and because the Florida Court
had no jurisdiction to assess them and
because there was no trustee agreement
allowing trustee attorney fees to be taken
from the trust,” (id.); (5) revise its March

Plaintiffs replied on July 16, 2012.
Raising many of their previously articulated
positions, plaintiffs challenge each and
every one of the Court’s prior rulings in its
March Order. (See Pls.’ Reply at 7-28.)2
Specifically, plaintiffs argue, inter alia, that
(1) the probate exception does not apply, (id.
at 9-10); (2) Section 487 is applicable, (id. at
10); (3) dismissal is not warranted on
grounds of either collateral estoppel or res
judicata, (id. at 10-14, 17); and (4) no
grounds support the issuance of either an

1

2

Plaintiffs did not insert page numbers into their
motion. Thus, all page numbers refer to those
assigned by the ECF docketing system.

Plaintiffs did not insert page numbers into their
reply. Thus, all page numbers refer to those assigned
by the ECF docketing system.
3

injunction or sanctions against plaintiffs, (id.
at 18).

the Federal Rules of Civil Procedure, the
Court finds any such motion to be frivolous.

Additionally, the Court has received
several supplemental submissions from the
parties with respect to their positions on the
appropriateness of sanctions. As part of
those submissions, defendants submitted
information reflecting that plaintiffs filed a
motion in the Supreme Court of New York
State in September 2012 – in clear violation
of that court’s prior filing injunction – in
which plaintiffs sought to re-litigate that
court’s dismissal of their case in 2010. (See
Defs.’ Letter of January 2, 2013 at 1.) On
December 7, 2012, Judge Diamond of the
Supreme Court, Nassau County, issued an
Order denying plaintiffs’ application. Ex’r of
N.Y. Estate of Celia Kates, et al. v. Pressley,
et al., Index No. 009928-10 (Sup. Ct. Nass.
Cty. Dec. 7, 2012.)

Turning first to each rule’s respective
standards, the standard for granting a motion
for reconsideration under either Rule 59(e)
of the Federal Rules of Civil Procedure or
Local Rule 6.3 is “strict, and reconsideration
will generally be denied.” Herschaft v.
N.Y.C. Campaign Fin. Bd., 139 F. Supp. 2d
282, 283 (E.D.N.Y. 2001) (quoting In re
Health Mgmt. Sys. Inc. Secs. Litig., 113 F.
Supp. 2d 613, 614 (S.D.N.Y. 2001))
(internal quotation marks omitted). This
strictness is “to dissuade repetitive
arguments on issues that have already been
considered fully by the Court.” Medoy v.
Warnaco Emps.’ Long Term Disability Ins.
Plan, 97 CV 6612(SJ), 2006 WL 355137, at
*1 (E.D.N.Y. Feb. 15, 2006). A movant
may overcome this strict standard, however,
by “point[ing] to controlling decisions or
data that the court overlooked – matters, in
other words, that might reasonably be
expected to alter the conclusion reached by
the court.” Shrader v. CSX Transp., Inc., 70
F.3d 255, 257 (2d Cir. 1995); Herschaft, 139
F. Supp. 2d at 283 (same); see also Black v.
Diamond, 05-0785-CV, 05-1669-CV, 163 F.
App’x 58, 61 (2d Cir. 2006) (“To merit
reconsideration, a movant must point to law
or facts overlooked by the court in its initial
ruling . . . .”). Alternatively, a movant must
show “the need to correct a clear error or
prevent manifest injustice.” Herschaft, 139
F. Supp. 2d at 284 (quoting Griffin Indus.,
Inc. v. Petrojam, Ltd., 72 F. Supp. 2d 365,
368 (S.D.N.Y. 1999)). Local Civil Rule 6.3
further instructs that a party moving for
reconsideration must “set[] forth concisely
the matters or controlling decisions which
[the party] believes the court has
overlooked.”

II. DISCUSSION
A. Plaintiffs’ Motions
Before addressing the principal matters
at hand (i.e., the grant or denial of a
litigation injunction and attorneys’ fees and
costs), the Court briefly addresses other
aspects of plaintiffs’ submissions. First, to
the extent plaintiffs move for summary
judgment, the Court already has dismissed
plaintiffs’ claims under Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil
Procedure. Thus, any such motion is moot.
Second, insofar as plaintiffs’ submission
may be construed as a motion for
reconsideration under Rule 59(e) of the
Federal Rules of Civil Procedure and Local
Civil Rule 6.3 for the Southern and Eastern
Districts of New York (“Local Rule 6.3”)
(given that it directly challenges each of the
March Order’s holdings as to dismissal), or
as a motion for relief under Rule 60(b) of

Rule 60(b) of the Federal Rules of Civil
Procedure allows a court to relieve a party
4

from an order in the event of mistake,
inadvertence, excusable neglect, newly
discovered evidence, fraud, or in exceptional
or extraordinary circumstances. Fed. R. Civ.
P. 60(b); House v. Sec’y of Health and
Human Servs., 688 F.2d 7, 9 (2d Cir. 1982).
The Second Circuit has instructed that Rule
60(b) affords “extraordinary judicial relief”,
and it may only be granted “upon a showing
of exceptional circumstances.” Nemaizer v.
Baker, 793 F.2d 58, 61 (2d Cir. 1986);
accord United States v. Bank of N.Y., 14
F.3d 756, 759 (2d Cir. 1994).

B. Litigation Injunction
Plaintiffs have, on two prior occasions,
expressly stated that they do not oppose
issuance of an injunction against them in
this action. (See Pls.’ Mot. at 28 (“[T]he
Court may set an injunction if it so
wishes.”); Pls.’ Letter of May 3, 2012 at 1
(“Plaintiffs . . . will not oppose the motion
for injunction.”).) However, in their reply
motion, plaintiffs – for the first time – take a
different position, stating “there is no cause
for either an injunction in favor of Pressly
[sic] or sanctions . . . .” (Pls.’ Reply at 18.)
Despite their prior concessions, the Court
has considered plaintiffs’ opposition to the
issuance of an injunction, and it concludes
that such an injunction is warranted here for
the reasons set forth below.

Returning to the facts of this case,
plaintiffs have not pointed to any controlling
decisions or evidence that they contend this
Court has overlooked. Indeed, plaintiffs’
motion appears to be based on the same
facts and arguments previously raised before
this Court. The case law is clear: a motion
for reconsideration “is not one in which a
party may reargue ‘those issues already
considered when a party does not like the
way the original motion was resolved.’”
Joseph v. Manhattan & Bronx Surface
Transit Operating Auth., 96 Civ. 9015
(DAB), 2006 WL 721862, at *4 (S.D.N.Y.
Mar. 22, 2006) (quoting In re Houbigant,
Inc., 914 F. Supp. 997, 1001 (S.D.N.Y.
1996)). This is exactly the situation here.

1. Legal Standard
Where a vexatious litigant engages in a
manifest abuse of the judicial process,
Section 1651 of Title 28 of the United States
Codes offers recourse. Specifically, it allows
a court to “sanction a vexatious litigant who
abuses the judicial process by enjoining him
from pursuing future litigation without leave
of the court.” Levine v. Landy, 860 F. Supp.
2d 184, 193 (N.D.N.Y. 2012) (citing 28
U.S.C. § 1651); Conway v. Brooklyn Union
Gas Co., 236 F. Supp. 2d 241, 252
(E.D.N.Y. 2002) (“District courts, of course,
have authority to enjoin a litigant from
initiating vexatious actions.”). A district
court’s power to so sanction is wellaccepted, as it “is part of the federal judicial
system and has an obligation to protect and
preserve
the
sound
and
orderly
administration of justice throughout that
system.” In re Martin-Trigona, 737 F.2d
1254, 1262 (2d Cir. 1984).

Because plaintiffs have not alleged any
basis sufficient to warrant relief from the
Court’s March 22, 2012 Memorandum and
Order under Federal Rules of Civil
Procedure 59(e) or 60(b), or Local Rule 6.3,
their motion to reconsider or grant relief
from the Court’s Order dismissing the
complaint is denied.
The Court now turns to the two main
issues before it: (1) whether the Court
should issue a litigation injunction against
plaintiffs, and (2) whether the Court should
grant attorneys’ fees and costs to defendants.
5

N.A., 04-CV-5153 (DRH)(ARL). Plaintiffs
also have brought nearly identical actions in
New York and Florida state courts, which
have sought to curb the incessant flow of
plaintiffs’ frivolous litigation by issuing
sanctions in the form of injunctions and/or
fees to prevent plaintiffs from filing future
actions.3

Stated most simply, a court considering
the propriety of a litigation injunction must
first consider whether the vexatious litigant
“is likely to continue to abuse the judicial
process and harass other parties,” and from
such a determination, assess whether an
injunction is appropriate. Safir v. United
States Lines, Inc., 792 F.2d 19, 24 (2d Cir.
1986). Before a court may issue such an
injunction and restrict a litigant’s access to
the courts, several factors must be
considered. Conway, 236 F. Supp. 2d at 252.
These include “(1) the litigant’s history of
vexatious, harassing or duplicative lawsuits;
(2) the litigant’s motive; (3) whether the
litigant is represented by counsel; (4)
whether the litigant has caused needless
expense to other parties; and (5) whether
sanctions would be adequate to protect the
civil parties.” Id. at 252 (citing Fitzgerald v.
Field, No. 99 Civ. 3406, 1999 WL 1021568,
at *5 (S.D.N.Y. Nov. 9, 1999)); see also
Landy, 860 F. Supp. 2d at 193-94.

3

Plaintiffs brought a nearly identical action against
the same defendants in New York Supreme Court,
County of Nassau. In orders dated April 20, 2007,
July 9, 2007, July 18, 2007, and August 1, 2007,
Justice Palmieri instructed plaintiffs not to bring any
further actions or proceedings against defendants or
their officers, employees, or agents without the
court’s permission. Specifically, Justice Palmieri
stated “[g]iven the petitioners’ litigation history,
including the fact that they began the instant
proceeding notwithstanding their knowledge of the
doctrine of res judicata, the Court finds that, unless
they are enjoined, they very well may start another
action after receiving this decision. . . . Accordingly,
this Court directs that no further actions or
proceedings may be commenced against the
respondent . . . without
the
express
written
permission of this Court. . . . [P]etitioners are warned
that the Court will not hesitate to impose such
sanctions should future developments warrant.”
Beneficiary, Irving C. Kates, et al. v. No. Trust Co.,
Index No. 001713/07 (Sup. Ct. Nass. Cty. Apr. 20,
2007).
Undeterred, plaintiffs not only brought an action
against Northern Trust before this Court, see Ex’r of
N.Y. Estate of Celia Kates, et al. v. Pressley, et al.,
No. 11-CV-3221 (JFB)(ARL), 2012 WL 976067
(E.D.N.Y. Mar. 22, 2012) (dismissing plaintiffs’
motion to dismiss), but they also – in complete
defiance of Justice Palmieri’s various orders –
brought another action in New York Supreme Court,
County of Nassau, see Ex’r of N.Y. Estate of Celia
Kates, et al. v. Pressley, et al., Index No. 009928-10
(Sup. Ct. Nass. Cty. Aug. 23, 2010). In his Order
dismissing that case, Justice Diamond noted that
plaintiffs’ action had been brought in violation of the
court’s previous orders (including the Orders of
Justice Palmieri, dated April 20, 2007, July 9, 2007,
July 18, 2007 and August 1, 2007), and he therefore
dismissed their complaint “[o]n the grounds of being
improperly commenced in violation of the previously
imposed filing injunction.” Id. Justice Diamond
noted that Justice Palmieri’s prior order issuing the
injunction had been upheld by both Justice Palmieri
and the Appellate Division of the Supreme Court,

2. Application
The Court has carefully considered the
relevant factors supporting issuance of an
injunction, and it concludes that the
circumstances of this case call for a
restriction on plaintiffs’ future federal
litigation in this District.
Beginning with the first factor,
plaintiffs’ litigious shadow casts far over
this Court and into others. As previously
stated, this is plaintiffs’ fourth attempt in
this Court at litigating claims arising from
the management and administration of the
Irving G. Kates Trust. See Barash v. N.
Trust
Corp.,
et
al.,
07-CV-5208
(JFB)(ARL); Trustee N. Trust Bank of
Florida, N.A. v. Estate of Celia Kates, by its
Ex’r Philip Barash and Sandra Barash, et
al., 04-CV-5295 (DRH); Ex’r. Estate of
Celia Kates, Philip Barash v. N. Trust Bank,
6

Thus, as to the first factor, the
procedural history of this case speaks for
itself: plaintiffs have filed duplicative,
vexatious, and harassing lawsuits in several
courts and jurisdictions.

admonitions against plaintiffs’ filing of
litigation concerning the Irving G. Kates
Trust – admonitions that have included both
injunctions and the issuance of sanctions –
this Court is hard-pressed to accept that
plaintiffs here had “an objective good faith
expectation of prevailing” when they filed a
lawsuit raising nearly identical claims and
arguments as they had filed before, with
little or no success. Id. at *5 (“In
determining whether to restrict a litigant’s
future access to the Federal courts, the court
should consider the following factors[,
including] . . . the litigant’s motive in
pursuing the litigation, e.g. does the litigant
have an objective good faith expectation of
prevailing?” (quoting Safir, 792 F.2d at 24)
(internal quotation mark omitted)).

As to the second factor, motive,
plaintiffs’ continuous filings of nearly
identical frivolous litigations, many in direct
violation of court orders, serve more, at this
point, to harass the participants in this case –
defendants and counsel alike – and to
provide a soapbox from which plaintiffs
might continue to express their same
frustrations with the Irving G. Kates Trust
(as they have many times before) than to
submit responsible pleadings concerning
potentially meritorious issues. See generally
Buell ex rel. Buell v. Bruiser Ken, Nos. 97
CV 1131, 98 CV 421, 1999 WL 390642, at
*6 (E.D.N.Y. Mar. 31, 1999) (finding as
factor weighing in favor of issuance of
litigation injunction the fact that plaintiff
continued to file “voluminous submissions,
including rambling, at times incoherent, and
often irrelevant memoranda” that seemed
more like harassment than “responsible
pleadings”). Given other courts’ repeated

With respect to the third factor (i.e.,
whether the litigant is represented by
counsel), plaintiffs have represented
themselves throughout the long and winding
road of these related litigations. Although
the plaintiffs have been proceeding pro se,
“a court’s authority to enjoin vexatious
litigation extends equally over pro se
litigants and those represented by counsel,
and a court’s special solicitude towards pro
se litigants does not extend to the willful,
obstinate refusal to play by the basic rules of
the system upon whose very power the
plaintiff[s] [are] calling to vindicate [their]
rights.” Lipin v. Hunt, 573 F. Supp. 2d 836,
845 (S.D.N.Y. 2008) (citation and internal
quotation marks omitted). Thus, even
though this factor would weigh against a
litigation injunction, the other factors
overwhelmingly outweigh this factor
because it is clear that these plaintiffs, even
as pro se litigants, are willfully abusing the
judicial process.

Second Department, on multiple occasions. Justice
Diamond also acknowledged that “similar injunctions
were [] ordered against the plaintiffs in the Florida
Actions, together with impositions of sanctions and
fees for the same brand of wastefully litigious
conduct.” Id. Justice Diamond concluded by warning
that “any future violations of this injunction,
previously imposed by a decision and order of this
Court issued by Judge Palmieri on April 20, 2007,
WILL, without issue or debate, result in sanctions
against plaintiffs.” Id.
Proving yet again that plaintiffs are not easily
discouraged, plaintiffs moved seeking to vacate
Justice Diamond’s 2010 Order in October 2012. On
December 7, 2012, Justice Diamond issued an order
denying plaintiffs’ request, concluding that
“[p]laintiffs’ motion is an attempt to reargue the same
issues and facts contained in the original motion
papers.” Ex’r of N.Y. Estate of Celia Kates, et al. v.
Pressly, et al., Index No. 9928-10 (Sup. Ct. Nass.
Cty. Dec. 7, 2012).

With respect to the fourth factor,
“whether the litigant has caused needless
expense to other parties or has posed an
7

69 (2d Cir. 1997) (affirming district court’s
issuance of injunction where plaintiff had
repeatedly filed repetitive actions, including
in the face of court warnings, in different
jurisdictions and forums, and finding as
dispositive the fact that plaintiff “has amply
demonstrated that neither the lack of success
of his actions nor the warnings of the district
court will cause him to cease his abuse of
the judicial process”); Hoffenberg v.
Hoffman & Pollok, 288 F. Supp. 2d 527,
539 (S.D.N.Y. 2003) (citing cases and
stating that “[c]ourts have recognized the
need to impose severe limitations on the
opportunity of litigious individuals to pursue
their vexatious and frivolous claims”). For
these reasons, plaintiffs’ repeat filings, often
in defiance of court orders, impose a burden
not only on defendants, but also on the
courts. Thus, the fourth factor weighs in
favor of the issuance of an injunction.
Hoffenberg, 288 F. Supp. at 539 (“The
court’s power to enjoin [litigious]
individuals is used to protect judicial
resources, the finality of judgment and the
integrity of the courts from those plaintiffs
who abuse the court system and harass their
opponents.”).

unnecessary burden on the courts and their
personnel,” Safir, 792 F.2d at 24, there is no
doubt here that defendants already have lost,
and will continue to lose, substantial time
and resources defending against plaintiffs’
frequent filings at both the state and federal
level in different jurisdictions. Enjoining
plaintiffs from bringing virtually identical
and meritless actions against defendants will
prevent defendants from suffering further
harm, including (but by no means limited to)
the economic costs associated with litigating
a dispute.
As for the courts, an injunction here will
bar plaintiffs from pursuing any further
litigation in this Court arising from the
management and administration of the
Irving G. Kates Trust. This is not a question
of preventing plaintiffs from having their
day in court – they have had it, in multiple
forums and jurisdictions. Plaintiffs simply
are not pleased with past outcomes, and, as
evidenced by this case’s procedural history,
their solution to such is to take their facts
and legal arguments elsewhere. Plaintiffs’
right to pursue a cause of action here has
been respected. However, a litigant does not
receive unlimited swings at bat.

Turning to the fifth and final
consideration, “whether other sanctions
would be adequate to protect the courts and
other parties,” Safir, 792 F.2d at 24, the
Court concludes that an award of monetary
damages would not repair the underlying
harm associated with plaintiffs’ aggressive,
incessant, and – given the frequency and
repetitiveness of plaintiffs’ claims –
frivolous litigation. Stated differently,
awarding monetary damages here would be
insufficient to address the heart of this
problematic situation – while it might serve
to ameliorate some damage (assuming
defendants were able to collect on such an
award), it cannot rectify the overall harm

Plaintiffs’ ceaseless filings, including in
direct contravention of court orders,
undermine public confidence in the judicial
system, particularly if litigants are allowed
to disobey court orders with little to no
repercussion. While litigants are, of course,
entitled to their day in court, this does not
equate to a right to intentionally seek
duplicative and meritless litigation through
sheer abuse of the legal process. Just as
justice is not served where one is denied
access to the courts, so, too, may it be
hindered if a party cannot protect itself from
litigation that has traversed into the realm of
harassment for harassment’s sake. See
Malley v. N.Y.C. Bd. of Educ., 112 F.3d 69,
8

requirements will constitute sufficient
grounds for summarily denying leave to file.
No party need file a response to any
documents or motions served by plaintiffs
until leave from the Court, as so described,
is obtained.

already caused, nor will it effectively shield
defendants from future harm.
Having carefully considered those
factors set forth by the Second Circuit in
Safir, 792 F.2d at 24, this Court concludes
that plaintiffs here are “likely to continue to
abuse the judicial process and harass other
parties.” Id. For this reason, the Court holds
that injunctive relief is both necessary and
appropriate to shield defendants from being
forced to re-litigate a case that plaintiffs may
try to again resurrect in this District. See
generally In re Martin-Trigona, 737 F.2d at
1261 (upholding issuance of injunction
where plaintiff “abuse[d] the process of the
Courts to harass and annoy others with
meritless,
frivolous,
vexatious
or
repetitive . . . proceedings” (quoting In re
Hartford Textile Corp., 659 F.2d 299, 305
(2d Cir. 1981)) (no quotation marks)); Lipin
v. Nat’l Union Fire Ins. Co. of Pittsburgh,
Pa., 202 F. Supp. 2d 126, 142 (S.D.N.Y.
2002) (“A district court has the authority to
enjoin a plaintiff who engages in a pattern of
vexatious litigation from continuing to do
so.”).

Plaintiffs are warned that should they
ignore the Court’s order and begin another
series of lawsuits, this injunction may be
broadened to include all federal district
courts. Stated differently, if their frivolous
filings continue, plaintiffs may be
permanently barred from pursuing this same
litigation in any district court throughout the
nation. See Malley, 112 F.3d at 69 (noting
that where appellant had filed another
repetitious action in the Eastern District of
New York after being barred from filing
future complaints in the Southern District of
New York, “broaden[ing] the injunction
beyond the Southern District to all federal
courts” was appropriate “in light of the
warnings previously issued to [appellant]
and [ ] his persistence in pursuing the same
meritless claims wherever his papers are
accepted by a clerk of court,” and remanding
to district court to so broaden the
injunction); Sassower v. Abrams, 833 F.
Supp. 253, 270 (S.D.N.Y. 1993) (granting
injunction permanently barring plaintiff
from filing any action in any federal district
court because plaintiff had “clearly
demonstrated . . . that, when an injunction is
limited to one federal district or circuit
court, [plaintiff] simply institutes an
identical lawsuit in another federal forum,”
and thus, such a broad injunction was the
only “sanction which would be adequate to
protect the defendants and the courts”).
Moreover, although the Court is not also
awarding attorneys’ fees or costs to the
defendants in this case (for the reasons
discussed below), such attorneys’ fees and
costs can be awarded in future actions if
defendants are required to expend any

The granted injunction shall apply to the
United States District Court for the Eastern
District of New York, allowing it to
summarily dismiss lawsuits brought by
plaintiffs where such suits are either filed in
or removed to federal court, and either relate
to or arise from issues concerning the
management or administration of the Irving
G. Kates New York Trust. In seeking leave
to file, plaintiffs must certify that any
claim(s) they wish to bring are new, i.e.,
have never been raised and/or disposed of
on the merits by any court. Additionally,
plaintiffs must certify that any such claim(s)
are not frivolous, malicious, or taken in bad
faith, and they must expressly cite or affix a
copy of this Opinion and Order to any such
motion. A failure to comply with these
9

(JFB)(ARL) (E.D.N.Y. Oct. 6, 2011), ECF.
No. 14. It was defendants who requested an
opportunity to respond to plaintiffs’
submissions. (See Defs.’ Letter of Oct. 27,
2011 at 1-2.) In other words, the Court
sought to use its authority to dismiss the
frivolous case sua sponte to avoid
unnecessary litigation costs to defendants.
Additionally,
according
to
various
documents submitted to this Court,
monetary sanctions were awarded against
plaintiffs in the Florida action. Thus, the
monetary sanctions previously awarded
against these plaintiffs, along with this
Court’s litigation injunction, and the
possibility of a nationwide federal litigation
injunction and/or monetary sanctions should
such vexatious litigation continue, are
sufficient sanctions under the circumstances
of this case; the Court sees no need to
impose monetary sanctions in this particular
case. See Poll v. Paulson, No. 1:06-CV-144
TC, 2008 WL 118076, at *5 (D. Utah Jan. 8,
2008) (“Those [prior] monetary sanctions
coupled with an injunction entered by this
court restricting future filings should
provide sufficient motivation for [plaintiff]
to not engage in litigation abuse.”); see also
Lipin, 573 F. Supp. 2d at 846 (“While the
Court is sensitive to the cost that [plaintiff]
has imposed on defendants, the principal
objective of the imposition of Rule 11
sanctions is not compensation of the
victimized party but rather the deterrence of
baseless filings and the curbing of
abuses . . . Because [plaintiff’s] abusive
conduct will be completely deterred by
injunctive relief, an additional award of
attorneys’ fees is not warranted.”); Brady v.
Marks, 7 F. Supp. 2d 247, 256 (W.D.N.Y.
June 22, 1998) (“Since my order enjoining
plaintiff from filing further actions relating
to his Family Court proceedings without
prior leave of court should effectively
prevent plaintiff from continuing to pursue
such baseless claims in this court, additional

additional money in response to another
vexatious lawsuit or motion filed by
plaintiffs in this District.
C. Attorneys’ Fees and Costs
Having concluded that the issuance of an
injunction is warranted in this case, the
Court declines to award attorneys’ fees and
costs to defendants. Generally, “litigants are
required to bear their own attorneys’ fees
unless otherwise provided by contract or
statute.” Five And One, Inc. v. Pine Tavern,
Inc., No. 00 Civ.4556 LAK, 2003 WL
21357123, at *2 (S.D.N.Y. June 12, 2003).
Here, there is no contract or statute at issue.
The Court has carefully considered
defendants’ position that attorneys’ fees and
costs, as an additional form of sanction, are
also necessary on account of plaintiffs’
intentional repeat filings of a frivolous
action. However, the Court concludes in its
discretion (based upon its judicial
supervision of this litigation) that the
granting of the litigation injunction here –
with the possibility of issuing an even
broader one, should plaintiffs choose to
ignore it – will serve as both the greater
remedy for defendants’ harm, and the
greater deterrence against plaintiffs’ abuse
of the judicial process. It therefore finds the
additional monetary sanction to be
unwarranted.
In connection with the exercise of its
discretion, the Court also notes that,
although defendants did file papers in
connection with the dismissal of this case,
the Court did not require a formal motion to
dismiss from defendants. Rather, it sought to
address this issue sua sponte, after giving
plaintiffs an opportunity to show cause as to
why the case should not dismissed. See
Order, dated October 6, 2011, Ex’r of N.Y.
Estate of Celia Kates, Philip Barash, et al. v.
Pressley, et al., No. 11-CV-3221
10

sanctions, at this time, such as a monetary
penalty, should not be necessary.”).

** *
Plaintiffs are proceeding pro se: Executor of
the New York Estate of Celia Kates, Philip
Barash, 6 Serenite Lane, Muttontown, New
York 11791; Beneficiary of the Irving G.
Kates New York Trust, Sandra Barash, 6
Serenite Lane, Muttontown, New York
11791. The attorneys for defendants are
Marian C. Rice, L’Abbate, Balkan, Colavita
& Contini LLP, 1050 Franklin Avenue,
Garden City, NY 11530, and Candice Brook
Ratner of L’Abbate, Balkan, Colavita &
Contini LLP, 1001 Franklin Avenue, Garden
City, New York 11530.

In short, because the injunction here will
serve as a sufficient sanction under the
circumstances of this case for defendants’
harm, the Court denies defendants’ motion
for attorneys’ fees and costs.4
III. CONCLUSION
For the reasons stated herein, plaintiffs’
motion is denied in its entirety. Defendants’
motion for attorneys’ fees and costs is
denied. Defendants’ motion for a litigation
injunction is granted. A separate document
will be issued by the Court setting forth the
terms of the litigation injunction. Nothing in
the injunction shall be construed as having
any effect on plaintiffs’ ability to file an
appeal before the United States Court of
Appeals for the Second Circuit, or to bring a
lawsuit in this District unrelated to the
subject matter of this litigation – namely,
plaintiffs may bring lawsuits unrelated to the
management and administration of the
Irving G Kates Trust.
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge

Dated: February 7, 2013
Central Islip, NY

4

Plaintiffs’ request for sanctions in the form of
attorneys’ fees is, of course, frivolous. In light of
plaintiffs’ continued meritless, harassing filings in
direct violation of various court orders, there are no
grounds supporting the award of attorneys’ fees to
plaintiffs. Accordingly, the Court denies plaintiffs’
request for attorneys’ fees. (Pls.’ Mot. to Obtain
Relief and/or for Summ. J. at 29.)
11