In an action to declare power of attorney invalid, (1) the plaintiff moves by order to show cause for an order to determine the validity of the power of attorney and to compel defendant to provide proof of non-party Jameela K. Butt’s dementia and/or obtain guardianship from Surrogate’s Court; and (2) defendant Neelofar Butt cross-moves for an order (1) to deny the relief sought by plaintiff by motion and the summons and complaint and dismissing same; (2) awarding costs against plaintiff and plaintiff’s counsel pursuant to 22 NYCRR 130-1.1; (3) awarding sanctions against plaintiff and plaintiff’s counsel pursuant to 22 NYCRR 130-1.1 and 130-1.2; (4) awarding defendant legal fees and costs in this action; (5) directing plaintiff to terminate and vacate the Notice of Pendency dated October 15, 2021 against the premises at 38 Brookwood Drive, Briarcliff Manor, New York, pursuant to CPLR 6514 and award defendant costs and expenses, including legal fees; (6) permitting defendant to only disclose the estate planning documents of Jamila Butt to the court for in camera review, except those documents disclosed by defendant; (7) granting defendant the right to update her attorney fees and costs upon full submission of the cross motion; and (8) directing plaintiff to seek approval from a judge of the New York State Supreme Court prior to filing any proceeding or action against Neelofar Butt regarding Jamila Butt, any estate planning documents regarding Jamila Butt, and/or any acts of Neelofar Butt under any authority or power regarding Jamila Butt: Papers Considered NYSCEF DOC. NO. 1-10; 12; 16; 18-53; 65-85 1. Summons/Complaint/Exhibits A-B 2. Order to Show Cause/Emergency Affirmation of Khalid M. Azam, Esq./Affirmation of Khalid M. Azam, Esq./Affidavit of Javaid Aziz/Exhibits A-B/ Certification of Khalid M. Azam, Esq./Affidavit of service 3. Notice of Pendency 4. Answer with counter-claims 5. Notice of Cross-Motion/Affidavit of Neelofar Butt/Affirmation of Christopher L. Mangold, Esq./Affidavit of Neil H. Reig, Esq./Affidavit of Fauzia Butt/Exhibits A-X/Memorandum of Law/Affidavit of service; 6. Cancellation of Notice of Pendency 7. Affidavit of Javaid Aziz/Affirmation of Khalid M. Azam, Esq. in further support and in opposition/Exhibits A-F/Exhibits H-I/Exhibits K-L/Exhibit O/Memorandum of law 8. Verified Reply to counterclaims 9. Letter/correspondence to judge from Christopher L. Mangold, Esq. 10. Letter/correspondence to judge from Khalid M. Azam, Esq. 11. Affidavit of Neelofar Butt/Affirmation of Christopher L. Mangold, Esq. in reply/Exhibits Y-Z DECISION & ORDER Factual and Procedural Background Plaintiff commenced the instant action by filing a summons and complaint on October 13, 2021 seeking to “uphold the wishes of JAMEELA BUTT, as expressed by her in the writing mailed by her to her brother [plaintiff] JAVAID AZIZ.” Specifically, plaintiff is challenging the validity of the power of attorney given to defendant by Jamila Butt, a non-party and the plaintiff’s sister and defendant’s mother. Plaintiff is also seeking proof that Jamila Butt is suffering with dementia. In support, plaintiff submitted a “Law Will and Testament”, dated September 9, 2019, purportedly signed by “Jameela K. Butt” and two witnesses, which states “1. The house at 38 Brookwood Drive, Briarcliff Manor, New York 11510, is owned by me in Trust. It cannot be sold during my lifetime….” The document is not notarized and there are no affidavits submitted on behalf of the witnesses to the document. Plaintiff filed a Notice of Pendency on the aforementioned property on October 15, 2021, and filed a notice of cancellation of the notice of pendency on November 2, 2021. Defendant submitted opposition to plaintiff’s motion to dismiss the summons and complaint, and a cross motion. In support, defendant submits her own affidavit, as well as an affidavit of Neil H. Reig, Esq., Jamila Butt’s attorney for estate planning including the power of attorney at issue, and an affidavit of Jamila Butt’s daughter Fauzia Butt, M.D. Defendant argues that plaintiff fails to state a viable cause of action and basis for relief. Defendant also brings to light a prior special proceeding commenced by plaintiff captioned Javaid Aziz v. Neelofar Butt, Index No. 54798/2021, which also challenged the power of attorney executed by Jamila Butt as well as her dementia diagnosis. Defendant argues that the plaintiff’s claims are barred by res judicata and/or collateral estoppel. Defendant argues that plaintiff’s papers are sanctionable as they contain lies, distortions of the truth, are deceptive, have no merit in law, and were undertaken to harass the defendant. Prior Civil Action Plaintiff commenced a prior action against the defendant with the filing of a petition in Supreme Court, Westchester County on June 16, 2021 under Index Number 54798/2021. The petition alleged that defendant in this action held a fraudulent power of attorney, procured through duress, fraud and/or undue influence of Jamila Butt, and that Jamila Butt is not incapacitated, but that the defendant in this action has put her in a nursing home on the allegation that she has dementia and has been slowly transferring her assets through fraudulent actions and signatures under the cloak of the power of attorney, which is not valid. Plaintiff in this action filed an order to show cause seeking an order directing defendant to provide an accounting of all assets still in the name of Jamila Butt, directing defendant to cease and desist all further transfers, establishing a turnover proceeding, granting a judgment in the amount of monies equal to what had been fraudulently taken by defendant by virtue of the invalid power of attorney, and awarding plaintiff reasonable attorneys’ fees. Defendant cross moved for an order denying the relief sought by plaintiff in his petition and order to show cause and dismissing same; awarding costs against petitioner and petitioner’s counsel to respondent pursuant to 22 NYCRR 130-1.1; and awarding sanctions against petitioner and petitioner’s counsel pursuant to NYCRR 1301.1 and 130-1.2. In a Decision and Order of the Hon. Linda S. Jamieson, dated June 21, 2021, plaintiff’s motion was denied and his petition was dismissed in its entirety. Judge Jamieson held that the plaintiff in this action was a legal bystander and had no standing to bring the petition pursuant to General Obligations Law §§15-1510 and 15-1505 which do not include siblings (who are not also guardians, agents, personal representatives, etc.) on the list of those who may challenge a power of attorney. Judge Jamieson did not directly opine on the allegation that Jamila Butt does not have diminished capacity due to dementia, but found that Jamila’s affairs did not concern the plaintiff herein, and further that the plaintiff’s “wild accusations” were without basis as he submitted to the Court “not one iota of evidence to support any of [his] allegations.” Pending Family Court Action The instant defendant filed a family offense petition on February 25, 2020 in Family Court, Westchester County against the plaintiff in this action to protect herself and Jamila. A temporary order of protection was issued on February 25, 2020 by the Hon. Wayne A. Humphrey which orders that the plaintiff stay away from Jamila Butt, the home of Jamila Butt, all of Jamila Butt’s upcoming doctor appointments and refrain from communicating with all treatment providers, and stay away from all treatment facilities including hospital and rehabilitation centers. As of the submission date of this motion November 30, 2021, the temporary order of protection was extended through the scheduled hearing date of December 2, 2021. Discussion “Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter. The rule applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation” (Matter of Singer v. Windfield, 125 A.D.3d 666, 667 [2d Dept 2015]). Under New York’s transactional approach to res judicata, “once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy (id., 667-668; see also O’Brien v. City of Syracuse, 54 NY2d 353, 357 [1981]). The instant action involves the same parties, and, in substance, the same claims as the prior action, namely the same power of attorney which appoints defendant to act on behalf of Jamila Butt and the same allegations regarding Jamila Butt’s dementia or lack thereof. Plaintiff tries to make a distinction between the two proceedings arguing that, in this proceeding plaintiff is questioning whether the power of attorney was explained to Jamila Butt in her native language and whether she understood the contents, extent and implications of the documents, whereas in the prior action, plaintiff questioned whether the power of attorney was properly executed on its face. However, any distinction is of no import as the doctrine of res judicata also bars claims that “could have been raised in the prior litigation.” (Matter of Singer v. Windfield, 125 A.D.3d 666, 667 [2d Dept 2015]). Also in this action, as in the prior action, plaintiff is seeking to compel documents to confirm that Jamila Butt has dementia, as he does not believe she has diminished capacity. As such, plaintiffs’ claims in the instant action are those that were and/or could have been raised in the prior proceeding which resulted in the Decision and Order of Judge Jamieson, dated June 21, 2021, on the merits and are barred by the doctrine of res judicata. 22 NYCRR 130.1.1 provides: (a) 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…. (b) The court, as appropriate, may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both…. (c) For purposes of this Part, conduct is 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 (3) it asserts material factual statements that are false. Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section. 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 or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, or should have been apparent, or was brought to the attention of counsel or the party. (22 NYCRR §130-1.1). Both plaintiff and plaintiff’s attorney engaged in frivolous conduct in commencing and continuing this action. (see 22 NYCRR 130.1.1; Miller v. Falco, 170 AD3d 707 [2d Dept 2019]). Plaintiff commenced this action against defendant which involves the same claims as the prior special proceeding brought by plaintiff against the same plaintiff defendant under Index Number 54798/2021. After a full and fair opportunity to be heard upon a fully submitted motion, Judge Jamieson dismissed the proceeding, as fully discussed above, by Decision and Order dated June 21, 2021. Plaintiff Javaid Aziz, in his Affidavit, dated October 12, 2021, in support of his order to show cause, swore, under penalty of perjury, that “no previous request has been made or is pending in any other court for the reliefs requested herein, that is to determine the validity of the Power of Attorney…” (NY St Cts Elec Filing [NYSCEF] Doc No. 8, Aziz aff 12). This is a material factual statement that is false pursuant to 22 NYCRR §130-1.1(c)(3). Plaintiff’s counsel, Mr. Azam, also affirmed under penalty of perjury, in his Affirmation dated October 12, 2021, that “no previous request has been made or is pending in any other court for the reliefs requested herein…” (NYSCEF Doc No. 7 affirmation of plaintiff’s counsel Azam 11). It is unclear whether Mr. Azam was aware of the prior lawsuit at the time he filed the affirmation. However, plaintiff’s application by order to show cause for a temporary restraining order was heard by this Court on October 19, 2021 with appearances by attorneys for both parties, Mr. Azam and Mr. Mangold. At the hearing on October 19, 2021, defendant’s counsel advised the court and plaintiff’s counsel that a prior action had been commenced by plaintiff which was dismissed. Accordingly, at least as of October 19, 2021, plaintiff’s counsel has been aware of the prior special proceeding and he should have then done due diligence in investigating the legal and factual basis, or lack thereof, of the prior proceeding including the claims and outcome. Instead, he continued with the instant action which is completely without merit in law, and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law pursuant to 22 NYCRR §1301.1(c)(1). Further, Mr. Azam certified on November 29, 2021, that the papers were not frivolous (NYSCEF Doc No. 66). This is a material factual statement that is false pursuant to 22 NYCRR §130-1.1(c)(3). Based on the history between the parties, including the temporary order of protection against the instant plaintiff and the plaintiff’s prior special proceeding, the plaintiff’s conduct in commencing this action and continuing to advance his claims appears to be intended primarily to harass the defendant and/or Jamila Butt (see Mascia v. Maresco, 39 AD3d 504, 506 [2d Dept 2017]). Under the circumstances of this case, the frivolous conduct of the plaintiff, as outlined above, has forced unnecessary litigation and is grounds for sanctions under 22 NYCRR 130-1.1. The defendant is awarded costs and reasonable attorneys’ fees as a sanction pursuant to 22 NYCRR 103-1.1. Defendant’s counsel submitted retainer agreement and billing statements for legal services provided for the current action and affirms to the legal services provided, which have totaled $21,586.40. At this time, the Court declines to impose further sanctions on plaintiff or plaintiff’s counsel. While the conduct of the plaintiff’s attorney is sanctionable, he is given the benefit of the doubt that he only became aware of the previous special proceeding while this action was pending. Plaintiff’s attorney is cautioned to exercise due diligence going forward as he would be individually sanctioned if this Court was convinced he was aware of the previous special proceeding prior to commencing the instant action. While public policy generally mandates free access to the courts, a party may forfeit that right if he or she abuses the judicial process by engaging in meritless litigation motivated by spite or ill will (Vogelsgesang v. Vogelgesang, 71 AD3d 1132, 1134 [2d Dept 2010]). 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 (DiSilvio v. Romanelli, 150 AD3d 1078, 1080 [2d Dept 2017]). Under the circumstances, there is a basis to prevent the plaintiff from engaging in further vexatious litigation against the defendant and/or Jamila Butt without prior written approval of the court. The parties’ remaining contentions have been considered by the Court and are found to be either moot or without merit. Accordingly, it is hereby ORDERED that plaintiff’s motion is DENIED with prejudice; and it is further ORDERED that the defendant’s cross-motion to dismiss the complaint is GRANTED and the complaint is dismissed with prejudice; and it is further ORDERED that the defendant shall submit a judgment to the Westchester County Clerk in her favor and against plaintiff JAVAID AZIZ in the principal amount of $21,586.40; and it is further ORDERED that plaintiff JAVAID AZIZ is enjoined from commencing future action sin the New York State Unified Court System against NEELOFAR BUTT and/or Jamila Butt without prior approval of the appropriate Administrative Justice or Judge; and it is further ORDERED that any violation of the above injunction by JAVAID AZIZ will subject JAVAID AZIZ to costs, sanctions and contempt proceedings. This constitutes the decision and order of the Court. Dated: December 22, 2021
