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FILED: NASSAU COUNTY CLERK 07/17/2023 02:17 PM INDEX NO. 600654/2023
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/17/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
____--------------____-._________-__---------------------____-..--______>
CELIA CLARK,
Index No.
600654/2023
PlaintpjÇ
AFFIRMATION IN SUPPORT
-against-
BRIANNA FEDAK and RYAN FEDAK,
Defendants.
--...--__________-------------------------------------------X
The Defendants identified within this motion, represented by the Law Offices of Meir
Moza & Associates, hereby move for sanctions against Plaintiff, CELIA CLARK, The Law
Office of Victor M. Feraru and Victor Feraru Esq (collectively the "Plaintiffs"), under CPLR §
8303-a and 22 NYCRR § 130-1.1.
I. INTRODUCTION
Plaintiffs'
1. The in this matter have engaged in vexatious conduct which has caused the
case at bar to prolong for more than a year.
2. The Plaintiffs bring forth a complaint against these Defendants for the causes of action of
Nuisance.
3. The Plaintiffs had filed a sununons with notice on January 11, 2023 (See Exhibit A).
Defendants'
4. On February 27, 2023 the counsel had filed a notice of appearance with
demand for the complaint pursuant to CPLR 3012(See Exhibit B).
5. Defendant's counsel failed to provide the complaint until he had e-filed it on April 10,
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2023 (See Exhibit C).
6. In the court's review of the allegations alleged in the complaint, the date in which
"incidents"
Plaintiff is frivolously claiming that the had occurred, a majority of which are
dated PAST the date in which the Summons with Notice had been filed (See Exhibit B).
7. Setting aside Plaintiffs engagement of frivolous conduct and attempt to make a mockery
of this Honorable court by filing a summons with notice and stalling the filing of the
dated"
complaint in order to obtain "post incidents, the Plaintiffs have filed their
complaint frivolously and meritiessly against these Defendants.
8. The complaint stems from an issue regarding nuisance, in which the Plaintiff, Celia
Clark, is claiming that these Defendants would connect to her home audio system and
play inappropriate voice memos and make noise in their apartment.
9. Foremost it should be noted that these Defendants do not know who or the whereabouts
of the Plaintiff except when they had been served this frivolous complaint.
10. Moreover, the Plaintiff has failed to establish any cause of action against these
Defendants and, most importantly, have failed to show that it had, in fact, been of
any
these Defendants who had engaged in any of the conduct or actions alleged in the
Plaintiff s complaint.
11. This frivolous suit had been done so out of spite and a vendetta in which the Plaintiff has
against the Defendant, Brianna Fedak, who the Plaintiff had singled out while she had
been entering her apartment and began hostile and aggressive towards her which
acting
caused the Defendant, Brianna Fedak, to call the police in fear of her safety.
12. Both the Plaintiff and her counsel were well aware that the the pleadings fail to establish
any cause of action against these Defendants as, foremost, the Defendants have provided
ample support that during the dates of the alleged incident the Defendants had not been
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near the residence of the Plaintiff as they had been out of town, at work, or spending time
as a family.
13. Both Plaintiff and Counsel, when initiating these pleadings, are well aware that from the
hundreds, if not thousands, of residents who reside in the same apartment complex, it
would be impossible to establish any cause of action for nuisance against these
Defendants as there unit is nowhere near that of the Plaintiffs.
14. Plaintiff and her counsel were well aware that the alleged incident which is outlined in
the complaint, even if it were true, does not establish that any of these Defendants had
engaged in that action.
15. Most importantly, Plaintiff and counsel were well aware, prior to initiating their frivolous
suit, that the Plaintiff is doing this in spite and in a vendetta in order to unnecessarily
harass, vex, annoy, and alarm the Defendants.
16. Counsel for Plaintiff has failed to do his due diligence as an attorney, duly licensed to
practice law in the State of New York, prior to initiating this complaint against the
Defendants, frivolously.
17. As a result of this the Defendants were forced to move out of their home and residence
within the same apartment complex and has costed them legal fees in answering this
frivolous and meritless action against them.
18. As a result we are requesting that this Honorable Court sanction the sanctions against
Plaintiffs, CELIA CLARK and The Law Office of Victor M. Feraru, and Victor Feraru
Esq (collectively the "Plaintiffs"), under CPLR § 8303-a and 22 NYCRR § 130-1.1.
II. CASE LAW IN SUPPORT
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19. 22 NYCRR § 130-1.1 holds that :
The court, in its discretion, may award to any party or attorney 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. In addition
to or in lieu of awarding costs, the court, in its discretion may impose fmancial
sanctions upon any party or attorney in a civil action or proceeding who engages in
frivolous conduct
20. Additionally, a finding of frivolousness, pursuant to CPLR § 8303-a , is proper when
plaintiffs'
the claims were commenced or continued in bad faith i) solely to delay or
prolong the resolution of the litigation or to harass or maliciously injure another; or ii)
without any reasonable basis in law or fact and could not be supported by a good faith
argument for an extension, modification or reversal of existing law. CPLR § 8303-a(c).
21. Moreover, the higher courts have held that frivolous court proceedings present a growing
problem which must be deterred (supra, 69 NY2d, at 4).
22. In considering whether specific conduct is frivolous, courts are required to examine whether
or not the conduct was continued when its lack of legal or factual basis was apparent [or]
apparent"
should have been (22 NYCRR 130-1.1 [c]). Awards of sanctions should not be
disturbed absent an abuse of discretion (See First Deposit Natl. Bank v. Van Allen. 277 AD2d
858. 860 [2000D.
23. Emphatically, Conduct is considered frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable argument
for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass
or maliciously injure another; or
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false"
(3) it asserts material factual statements that are (22 NYCRR 130-1.1 [c]; See
Mountain Lion Baseball v Gaiman, 263 AD2d 636, 639).
24. In determining whether conduct is frivolous, a court should consider such factors as the
circumstances under which the conduct took place, the time available for investigating
the legal or factual basis of the conduct, and whether the conduct was continued
after its lack of legal or factual basis was apparent, should have been apparent or
was brought to the attention of the sanctioned party (see, 22 NYCRR 130-1.1 [c];
Mountain Lion Baseball v Gaiman. sunra. at 639: Levv v Carol Mgt. Corp.. 260 AD2d
27, 34).
Plaintiffs'
25. In the case at bar the frivolous conduct by the and counsel serve as the
epitome of sanctionable and frivolous conduct.
26. Plaintiff and her counsel have failed to do their investigation in the factual basis of
the conduct and whether their was any legal or factual basis in bringing forth their
complaint against the Defendants.
27. Plaintiff's counsel had also, unnecessarily, prolonged in his complaint and
filing
when in fact he did do so, the complaint had post dated incidents outlined in it
which, again, serves as the epitome of their lack of factual and legal basis in their
complaint.
28. Plaintiffs claims, as a result of the frivolous nature inherent in was disputed
them,
by documentary evidence provided by the Defendants in addition for their failure to
establish a cause of action against any of these Defendants via their motion to
dismiss pursuant to CPLR 3211 (1) and (7).
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29. The Plaintiffs have submitted this complaint in order to vex and harass these
Defendants while, accordingly, wasting judicial time and resources.
30. Both the Plaintiff and her counsel were well aware that the the pleadings fail to establish
any cause of action against these Defendants as, foremost, the Defendants have provided
ample support that during the dates of the alleged incident the Defendants had not been
near the residence of the Plaintiff as they had been out of town, at work, or spending time
as a family.
31. Both Plaintiff and Counsel, when initiating these pleadings, are well aware that from the
hundreds, if not thousands, of residents who reside in the same apartment complex, it
would be impossible to establish any cause of action for nuisance against these
Defendants as there unit is nowhere near that of the Plaintiffs.
32. Plaintiff and her counsel were well aware that the alleged incident which is outlined in
the complaint, even if it were true, does not establish that of these Defendants had
any
engaged in that action.
33. Most importantly, Plaintiff and counsel were well prior to initiating their frivolous
aware,
suit, that the Plaintiff is doing this in spite and in a vendetta in order to unnecessarily
harass, vex, annoy, and alarm the Defendants.
34. Counsel for Plaintiff has failed to do his due diligence as an attorney, licensed to
duly
practice law in the State of New York, prior to initiating this complaint against the
Defendants, frivolously.
35. As a result of this the Defendants were forced to move out of their home and residence
within the same apartment complex and has cost them legal fees in answering this
frivolous and meritless action against them.
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36. Moreover, as a result of the vexatious, frivolous, and harassing conduct by the Plaintiff
and her counsel in bringing forth this frivolous suit the Defendants, Brianna Fedak and
Ryan Fedak, has suffered extreme emotional distress.
IV. CONCLUSION
Plaintiffs'
37. The conduct from the initial filings of their pleadings up until present has been
nothing less than vexing, harassing, and alarming while, accordingly, going against the
very guidelines set forth in the CPLR and Uniform Civil Rules for Supreme Court
Actions.
38. Plaintiff and counsel's action in bringing forth this suit serve as the epitome of frivolous
and sanctionable action and an overall failure to do their due diligence prior to initiating
their complaint while, accordingly, making a mockery of the Civil Justice System.
Defendants'
WHEREFORE, request that this motion pursuant to CPLR § 8303-a and 22
Plaintiffs'
NYCRR § 130-1.1 be granted against the and their counsel in addition to any and all
remedies which the court seems to be just and equitable.
Dated: Mineola, New York
June 4, 2023
MEIR MOZ SQ.
Law Offices of Meir Moza
Attorneys for Defendant(s)
217 Willis Ave., Ste. 101
Mineola, New York 11501
(516) 741-0003
To:
Victor M. Feraru, Esq.
Attorney for Plaintiff(s)
1225 Franklin Avenue, Suite 325
Garden City, New York 11530
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Preview
FILED: NASSAU COUNTY CLERK 07/17/2023 02:17 PM INDEX NO. 600654/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/17/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ____--------------____-._________-__---------------------____-..--______> CELIA CLARK, Index No. 600654/2023 PlaintpjÇ AFFIRMATION IN SUPPORT -against- BRIANNA FEDAK and RYAN FEDAK, Defendants. --...--__________-------------------------------------------X The Defendants identified within this motion, represented by the Law Offices of Meir Moza & Associates, hereby move for sanctions against Plaintiff, CELIA CLARK, The Law Office of Victor M. Feraru and Victor Feraru Esq (collectively the "Plaintiffs"), under CPLR § 8303-a and 22 NYCRR § 130-1.1. I. INTRODUCTION Plaintiffs' 1. The in this matter have engaged in vexatious conduct which has caused the case at bar to prolong for more than a year. 2. The Plaintiffs bring forth a complaint against these Defendants for the causes of action of Nuisance. 3. The Plaintiffs had filed a sununons with notice on January 11, 2023 (See Exhibit A). Defendants' 4. On February 27, 2023 the counsel had filed a notice of appearance with demand for the complaint pursuant to CPLR 3012(See Exhibit B). 5. Defendant's counsel failed to provide the complaint until he had e-filed it on April 10, 1 of 7 FILED: NASSAU COUNTY CLERK 07/17/2023 02:17 PM INDEX NO. 600654/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/17/2023 2023 (See Exhibit C). 6. In the court's review of the allegations alleged in the complaint, the date in which "incidents" Plaintiff is frivolously claiming that the had occurred, a majority of which are dated PAST the date in which the Summons with Notice had been filed (See Exhibit B). 7. Setting aside Plaintiffs engagement of frivolous conduct and attempt to make a mockery of this Honorable court by filing a summons with notice and stalling the filing of the dated" complaint in order to obtain "post incidents, the Plaintiffs have filed their complaint frivolously and meritiessly against these Defendants. 8. The complaint stems from an issue regarding nuisance, in which the Plaintiff, Celia Clark, is claiming that these Defendants would connect to her home audio system and play inappropriate voice memos and make noise in their apartment. 9. Foremost it should be noted that these Defendants do not know who or the whereabouts of the Plaintiff except when they had been served this frivolous complaint. 10. Moreover, the Plaintiff has failed to establish any cause of action against these Defendants and, most importantly, have failed to show that it had, in fact, been of any these Defendants who had engaged in any of the conduct or actions alleged in the Plaintiff s complaint. 11. This frivolous suit had been done so out of spite and a vendetta in which the Plaintiff has against the Defendant, Brianna Fedak, who the Plaintiff had singled out while she had been entering her apartment and began hostile and aggressive towards her which acting caused the Defendant, Brianna Fedak, to call the police in fear of her safety. 12. Both the Plaintiff and her counsel were well aware that the the pleadings fail to establish any cause of action against these Defendants as, foremost, the Defendants have provided ample support that during the dates of the alleged incident the Defendants had not been 2 of 7 FILED: NASSAU COUNTY CLERK 07/17/2023 02:17 PM INDEX NO. 600654/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/17/2023 near the residence of the Plaintiff as they had been out of town, at work, or spending time as a family. 13. Both Plaintiff and Counsel, when initiating these pleadings, are well aware that from the hundreds, if not thousands, of residents who reside in the same apartment complex, it would be impossible to establish any cause of action for nuisance against these Defendants as there unit is nowhere near that of the Plaintiffs. 14. Plaintiff and her counsel were well aware that the alleged incident which is outlined in the complaint, even if it were true, does not establish that any of these Defendants had engaged in that action. 15. Most importantly, Plaintiff and counsel were well aware, prior to initiating their frivolous suit, that the Plaintiff is doing this in spite and in a vendetta in order to unnecessarily harass, vex, annoy, and alarm the Defendants. 16. Counsel for Plaintiff has failed to do his due diligence as an attorney, duly licensed to practice law in the State of New York, prior to initiating this complaint against the Defendants, frivolously. 17. As a result of this the Defendants were forced to move out of their home and residence within the same apartment complex and has costed them legal fees in answering this frivolous and meritless action against them. 18. As a result we are requesting that this Honorable Court sanction the sanctions against Plaintiffs, CELIA CLARK and The Law Office of Victor M. Feraru, and Victor Feraru Esq (collectively the "Plaintiffs"), under CPLR § 8303-a and 22 NYCRR § 130-1.1. II. CASE LAW IN SUPPORT 3 of 7 FILED: NASSAU COUNTY CLERK 07/17/2023 02:17 PM INDEX NO. 600654/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/17/2023 19. 22 NYCRR § 130-1.1 holds that : The court, in its discretion, may award to any party or attorney 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. In addition to or in lieu of awarding costs, the court, in its discretion may impose fmancial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct 20. Additionally, a finding of frivolousness, pursuant to CPLR § 8303-a , is proper when plaintiffs' the claims were commenced or continued in bad faith i) solely to delay or prolong the resolution of the litigation or to harass or maliciously injure another; or ii) without any reasonable basis in law or fact and could not be supported by a good faith argument for an extension, modification or reversal of existing law. CPLR § 8303-a(c). 21. Moreover, the higher courts have held that frivolous court proceedings present a growing problem which must be deterred (supra, 69 NY2d, at 4). 22. In considering whether specific conduct is frivolous, courts are required to examine whether or not the conduct was continued when its lack of legal or factual basis was apparent [or] apparent" should have been (22 NYCRR 130-1.1 [c]). Awards of sanctions should not be disturbed absent an abuse of discretion (See First Deposit Natl. Bank v. Van Allen. 277 AD2d 858. 860 [2000D. 23. Emphatically, Conduct is considered frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or 4 of 7 FILED: NASSAU COUNTY CLERK 07/17/2023 02:17 PM INDEX NO. 600654/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/17/2023 false" (3) it asserts material factual statements that are (22 NYCRR 130-1.1 [c]; See Mountain Lion Baseball v Gaiman, 263 AD2d 636, 639). 24. In determining whether conduct is frivolous, a court should consider such factors as the circumstances under which the conduct took place, the time available for investigating the legal or factual basis of the conduct, and whether the conduct was continued after its lack of legal or factual basis was apparent, should have been apparent or was brought to the attention of the sanctioned party (see, 22 NYCRR 130-1.1 [c]; Mountain Lion Baseball v Gaiman. sunra. at 639: Levv v Carol Mgt. Corp.. 260 AD2d 27, 34). Plaintiffs' 25. In the case at bar the frivolous conduct by the and counsel serve as the epitome of sanctionable and frivolous conduct. 26. Plaintiff and her counsel have failed to do their investigation in the factual basis of the conduct and whether their was any legal or factual basis in bringing forth their complaint against the Defendants. 27. Plaintiff's counsel had also, unnecessarily, prolonged in his complaint and filing when in fact he did do so, the complaint had post dated incidents outlined in it which, again, serves as the epitome of their lack of factual and legal basis in their complaint. 28. Plaintiffs claims, as a result of the frivolous nature inherent in was disputed them, by documentary evidence provided by the Defendants in addition for their failure to establish a cause of action against any of these Defendants via their motion to dismiss pursuant to CPLR 3211 (1) and (7). 5 of 7 FILED: NASSAU COUNTY CLERK 07/17/2023 02:17 PM INDEX NO. 600654/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/17/2023 29. The Plaintiffs have submitted this complaint in order to vex and harass these Defendants while, accordingly, wasting judicial time and resources. 30. Both the Plaintiff and her counsel were well aware that the the pleadings fail to establish any cause of action against these Defendants as, foremost, the Defendants have provided ample support that during the dates of the alleged incident the Defendants had not been near the residence of the Plaintiff as they had been out of town, at work, or spending time as a family. 31. Both Plaintiff and Counsel, when initiating these pleadings, are well aware that from the hundreds, if not thousands, of residents who reside in the same apartment complex, it would be impossible to establish any cause of action for nuisance against these Defendants as there unit is nowhere near that of the Plaintiffs. 32. Plaintiff and her counsel were well aware that the alleged incident which is outlined in the complaint, even if it were true, does not establish that of these Defendants had any engaged in that action. 33. Most importantly, Plaintiff and counsel were well prior to initiating their frivolous aware, suit, that the Plaintiff is doing this in spite and in a vendetta in order to unnecessarily harass, vex, annoy, and alarm the Defendants. 34. Counsel for Plaintiff has failed to do his due diligence as an attorney, licensed to duly practice law in the State of New York, prior to initiating this complaint against the Defendants, frivolously. 35. As a result of this the Defendants were forced to move out of their home and residence within the same apartment complex and has cost them legal fees in answering this frivolous and meritless action against them. 6 of 7 FILED: NASSAU COUNTY CLERK 07/17/2023 02:17 PM INDEX NO. 600654/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/17/2023 36. Moreover, as a result of the vexatious, frivolous, and harassing conduct by the Plaintiff and her counsel in bringing forth this frivolous suit the Defendants, Brianna Fedak and Ryan Fedak, has suffered extreme emotional distress. IV. CONCLUSION Plaintiffs' 37. The conduct from the initial filings of their pleadings up until present has been nothing less than vexing, harassing, and alarming while, accordingly, going against the very guidelines set forth in the CPLR and Uniform Civil Rules for Supreme Court Actions. 38. Plaintiff and counsel's action in bringing forth this suit serve as the epitome of frivolous and sanctionable action and an overall failure to do their due diligence prior to initiating their complaint while, accordingly, making a mockery of the Civil Justice System. Defendants' WHEREFORE, request that this motion pursuant to CPLR § 8303-a and 22 Plaintiffs' NYCRR § 130-1.1 be granted against the and their counsel in addition to any and all remedies which the court seems to be just and equitable. Dated: Mineola, New York June 4, 2023 MEIR MOZ SQ. Law Offices of Meir Moza Attorneys for Defendant(s) 217 Willis Ave., Ste. 101 Mineola, New York 11501 (516) 741-0003 To: Victor M. Feraru, Esq. Attorney for Plaintiff(s) 1225 Franklin Avenue, Suite 325 Garden City, New York 11530 7 of 7