Pandozy v. Gabay
Filing
18
MEMORANDUM OPINION & ORDER: This action is dismissed sua sponte for violating the previous court orders issued in Tobey, 2007 WL 2815627, at *1, and Segan, 518 F. Supp. 2d at 558. Defendant's motion to dismiss is DENIED as moot. The Clerk of t he Court is directed to terminate the motion (Dkt. No. 11) and to close this case. The Clerk of the Court is further ORDERED to serve a copy of this Order, via certified mail, on Plaintiff Raffaele M. Pandozy, P.O. Box 153157, Dallas, TX 75315. (Signed by Judge Paul G. Gardephe on 9/29/2011)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
RAFFAELE M. PANDOZY, Ph.D.,
Plaintiff,
MEMORANDUM OPINION
& ORDER
- against 10 Civ. 3473 (PGG)
DAVID A. GABAY,
Defendant.
PAUL G. GARDEPHE, U.S.D.J.:
Plaintiff Raffaele M. Pandozy brings this pro se action against his former
attorney, Defendant David A. Gabay, alleging claims for legal malpractice based upon Gabay’s
representation of Pandozy in two lawsuits stemming from an unfavorable real estate transaction
that Pandozy entered into in 2003. Pandozy has been enjoined from “commencing, without prior
leave of court, any further federal court actions relating in any way (1) to the sale of his
apartment; (2) to the numerous lawsuits concerning the sale of his apartment; or (3) to the
individuals and attorneys who were involved in that transaction.” 1 Pandozy v. Tobey, No. 06
Civ. 12885(CM)(THK), 2007 WL 2815627, at *1 (S.D.N.Y. Sept. 24, 2007); see also Pandozy v.
Segan, 518 F. Supp. 2d 550, 558 (S.D.N.Y. 2007) (enjoining Pandozy “from commencing,
without prior leave of the Court, any federal action in this Court relating in any way to (1) the
sale of the Pandozy’s cooperative apartment at 280 Lafayette Street, New York, New York (the
‘Apartment’) to Brock Wylan, (2) litigation related to the sale of the Apartment or the events
surrounding that sale, or (3) the conduct in that transaction by individuals and attorneys involved
in the litigation arising from such sale”). Gabay moves to dismiss the Amended Complaint for
1
Pandozy has similarly been enjoined from filing such lawsuits in state court. Wylan v.
Pandozy, 2006 N.Y. App. Div. LEXIS 2242 (1st Dept. Feb. 21, 2006).
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Because this Court
concludes that Pandozy’s complaint falls under the court’s previous injunction against filing such
suits without leave, Pandozy’s complaint will be dismissed sua sponte and Gabay’s motion to
dismiss will be denied as moot.
DISCUSSION
Pandozy did not receive leave of court before commencing this action, so the only
question is whether the suit “relat[es] in any way (1) to the sale of his apartment; (2) to the
numerous lawsuits concerning the sale of his apartment; or (3) to the individuals and attorneys
who were involved in that transaction.” Tobey, 2007 WL 2815627, at *1.
The lawsuits concerning the sale of Pandozy’s apartment began when he placed
his New York apartment up for sale and signed a contract with a buyer. (Am. Cmplt. ¶ 7)
Pandozy claimed that the sale was never approved by the cooperative board, and attempted to
cancel the contract. (Id.) The buyer sued Pandozy in state court and was awarded specific
performance. See Wylan v. Pandozy, No. 600211/04 (N.Y. Sup. Ct. July 27, 2004).
A series of lawsuits followed. Pandozy sued the cooperative and its general
counsel, alleging intentional interference with contractual relations and breach of fiduciary duty;
that case was dismissed on April 4, 2006. Pandozy v. Lafayette Studios, Index No. 600495/05
(N.Y. Sup. Ct. April 4, 2006). The buyer’s attorney, Lawrence Segan, then brought a successful
action for libel against Pandozy in Segan v. Pandozy, Index No. 104238/05 (N.Y. Sup. Ct. Feb.
21, 2006). Pandozy also filed a federal action challenging the specific performance judgment
and alleging fraud upon the court, Pandozy v. Segan, No. 06 CV 7153(VM) (S.D.N.Y. filed Sept.
18, 2006), which was dismissed on September 28, 2007. Pandozy then filed the action Pandozy
v. Tobey, No. 06 Civ. 12885(CM) (S.D.N.Y. filed Nov. 2, 2006), against the cooperative board,
2
alleging conspiracy to harass him and oust him from the Apartment, malicious and frivolous
prosecution, and discrimination on the basis of financial status; that action was dismissed on
September 25, 2007. Finally, in Pandozy v. Robert J. Gumenick, P.C., No. 07 Civ. 1242(NRB)
(S.D.N.Y. filed Feb. 16, 2007), Pandozy asserted claims against five attorneys who represented
him in various stages of his litigations, charging them with fraud, legal malpractice, breach of
contract, and deceptive practices; this action was dismissed on May 23, 2008.
Gabay represented Pandozy in connection with two of these lawsuits – an appeal
from the libel judgment in Segan v. Pandozy, Index No. 104238/05 (N.Y. Sup. Ct.), and the
malpractice action against Pandozy’s former attorneys in Pandozy v. Robert J. Gumenick, P.C.,
No. 07 Civ. 1242(NRB) (S.D.N.Y.). It is clear that both of these actions fall under the broad
injunctions issued on September 24, 2007, Tobey, 2007 WL 2815627, at *1, and September 27,
2007, Segan, 518 F. Supp. 2d at 558. The injunctions apply to actions that relate “in any way” to
the sale of Pandozy’s apartment, lawsuits concerning the sale of the apartment, or the attorneys
involved. The libel action was brought by the buyer’s attorney, and Pandozy’s libelous
statement was made in a letter he sent to the cooperative’s shareholders that discussed his
pending appeals from the specific performance suit and asked the shareholders to submit
affidavits to the judge in that action. (Am. Cmplt. Ex. 19) Clearly, the libel action – and the
subsequent appeal from it – “relat[e] . . . (1) to the sale of [Pandozy’s] apartment; (2) to the
numerous lawsuits concerning the sale of his apartment; [and] (3) to the individuals and
attorneys who were involved in that transaction.” Tobey, 2007 WL 2815627, at *1.
Similarly, Gabay’s representation of Pandozy in the legal malpractice action
against five of Pandozy’s former attorneys falls squarely within the injunctions. The defendants
in that action – Robert Gumenick, Victor Worms, Gary Adelman, Jeffrey Roth, and Sherwood
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?