Esposito v. Suffolk County Community College

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

X

FRANCES C. ESPOSITO,

Plaintiff, MEMORANDUM OF

DECISION & ORDER

-against-

16-cv-04833(GRB)(ARL)

SUFFOLK COUNTY COMMUNITY

COLLEGE, NANCY GERLI, DIANE BOSCO,

and JEFFREY TEMPERA,

Defendants.

X

APPEARANCES:

Ellenoff Grossman & Schole LLP

Pro Bono Attorneys for the Plaintiff

1345 Avenue of the Americas, 11th Floor

New York, NY 10105

By: Amanda M. Fugazy, Robert James

Anderson

Harfenist Kraut & Perlstein LLP

Pro Bono Attorneys for the Plaintiff

3000 Marcus Ave., 2nd Floor East

Lake Success, NY 11042

By: Andrew C. Lang, Steven J. Harfenist

Suffolk County Attorney's Office

Attorneys for Defendants

100 Vets Memorial Hwy

Hauppauge, NY 11788

By: John Richard Petrowski, Assistant

County Attorney, Dana Kobos,

Assistant County Attorney, Elaine M.

Barraga, Assistant County Attorney

GARY R. BROWN, United States District Judge:

Federal litigation constitutes a search for truth. The thorough, refined processes

administered by this Court are designed to provide parties with fair, efficient and highly

effective methods to discover and develop evidence and resolve disputes. From time to time,

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however, a party will attempt to tamper with or fabricate evidence. The result can be a costly

detour that threatens to undermine the protections built into the system and fundamentally

impede the process. This case, sadly, provides a painful and flagrant example.

In this action, Frances Esposito (“plaintiff”), an adjunct college professor sporting

advanced educational degrees, altered, forged and tampered with evidence, and repeatedly

perjured herself to conceal these misdeeds. The late Honorable Arthur D. Spatt, to whom this

matter was previously assigned, a judge whose commitment to fairness and law is rarely

equaled, labored mightily to correct the balance, declining to dismiss the case and instead

imposing a panoply of remedies upon plaintiff in an effort to allow her claims to proceed

notwithstanding her egregious conduct. Unfortunately, though, now that the Court is

confronted with a fuller record in connection with various motions by the parties, it appears in

light of this record that the remedies previously imposed fall short. Some are simply

unworkable as, for example, the plaintiff lacks the financial wherewithal to pay the awarded

attorneys’ fees, which would help defray the significant costs unfairly imposed on the

defendants and provide a deterrent to such conduct. More importantly, careful examination of

the materials submitted reveals that the plaintiff’s contumacious conduct – which remains

uncorrected by her – has infected the evidentiary record and continues to impair the search for

truth. As such, dismissal of plaintiff’s claims, it turns out, represents the only fair resolution of

this case.

Procedural History and Relevant Facts

This heavily-litigated matter bears an extensive record. Plaintiff commenced this

proceeding more than four years ago through the filing of a 55-page complaint containing

nearly 450 paragraphs of allegations and fourteen causes of action. Familiarity with the

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following court orders are assumed: (1) Judge Spatt’s order of March 4, 2019 referring the case

to Magistrate Judge Arlene Lindsay for an evidentiary hearing following the defendants’

motion to dismiss and for other sanctions, Docket Entry (“DE”) 52; (2) the evidentiary hearing

held in May 2019, DE 62, 63, 66; (3) the findings of Magistrate Lindsay, set forth in a transcript

of proceedings held in July 2019, DE 69; (4) Judge Spatt’s order of July 26, 2019, adopting the

findings by Judge Lindsay and imposing sanctions, DE 71, Esposito v. Suffolk Cty. Cmty. Coll.,

390 F. Supp. 3d 428, 431 (E.D.N.Y. 2019); and (5) Judge Spatt’s order of October 31, 2019,

appointing pro bono counsel for plaintiff, DE 87.1

A brief review of the matter is warranted. As Judge Spatt noted, in her weighty

complaint, plaintiff

alleges that she and her doctors advised the College in 2005, 2006 and 2009 of her

purported disability and her need to be scheduled for back-to-back classes in the

same classroom, among other requests. She alleges failure to promote, failure to

provide reasonable accommodation and retaliation for bringing internal

complaints in December 2009 and a 2010 complaint to the Equal Employment

Opportunity Commission (“EEOC”).

DE 52 at 2. Esposito brings these claims against Suffolk County Community College (“SCCC”)

at which she is employed, the Academic Chair and Assistant Academic Chair of SCCC’s Reading

and College Seminar Department and its Assistant Vice President for Employee Relations

(collectively, “defendants”). After an extensive discovery process, defendants moved for

sanctions – including but not limited to dismissal – based on conduct which, defendants asserted,

amounted to a fraud on the Court. Id.

Specifically, defendants contended that there was evidence that plaintiff forged treatment

notes by her treating physicians, Drs. Campo and DiCanio. Those records were critical to certain

1 For avoidance of doubt, the misdeeds described in this decision are in no way attributable to pro bono counsel,

who labored admirably – if, at times, a bit aggressively – to represent the plaintiff, having inherited a terribly

difficult record.

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of plaintiff’s claims because, in sum and substance, the records from Drs. Campo and DiCanio

helped define her claimed disability, and, because she alleged that she contemporaneously

provided these records to the defendant college, they represented the basis for her claims of

discrimination and failure to accommodate. These documents, identifying her purported need for

accommodations, are ubiquitous among plaintiffs allegations: Defendants’ counsel has

contended, without contradiction, that “the plaintiff references the purported need for her

accommodation and the failure to give those accommodations 110 times in her federal complaint,

and she references it in 11 of the 14 causes of action that she brought against the college.” DE 63

at 5-6.

After a searching review of the written submissions, Judge Spatt found that “the Court is

confident that it possesses sufficient evidence to find that the Plaintiff forged Dr. Campo’s notes.”

DE 52 at 7. As to Dr. DiCanio’s notes, Judge Spatt found that, based solely on the written

submissions, “the record does not sufficiently establish by clear and convincing evidence that she

forged these notes.” Id. at 9. Out of abundance of caution, though, Judge Spatt referred the

matter to Magistrate Judge Lindsay “for an evidentiary hearing regarding the authenticity of Dr.

Campo’s August 8, 2005 and August 9, 2005 letters and Dr. DiCanio’s September 2006 letter,

September 2009 note and December 30, 2014 forms.” Id. at 16.

Over a series of days, Magistrate Judge Lindsay held a hearing, which included testimony

from plaintiff, the subject physicians, office staff and several college officials. DE 62, 63, 66.

Following the hearing, Magistrate Judge Lindsay made findings on the record, in which she

determined that defendants established by clear and convincing evidence that plaintiff had forged

Dr. Campo’s records. Specifically, one of Dr. Campo’s medical notes, identified as J-3, was an

unauthorized, altered version of an earlier legitimate document prepared by the doctor. DE 69 at

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3-5. Judge Lindsay noted that the document “was central to the claim of disability discrimination

and the failure to accommodate,” as it included a list of accommodations required by the plaintiff.

Id. at 3-4. She found plaintiff’s explanation for this alteration “simply not believable.” Id. at 5-

7. A second document, J-2, dated in 2005, was actually created in 2010. Id. at 8. Therefore,

Judge Lindsay concluded:

I find by clear and convincing evidence that with respect to J-2 and J-3, those

documents were created by plaintiff or at plaintiff's behest. They were not authentic

documents of Dr. Campo's office. And she submitted J-2 and J-3 or caused J-2 and

J-3 to be submitted knowing that they were not true chiropractic notes of Dr.

Campo.

Id. at 14. Review of these forged, altered records reveals that plaintiff used these documents to

manufacture a list of required accommodations purportedly imposed by Dr. Campo which, in truth

and fact, he did not find necessary for plaintiff (and, based on the testimony of the doctor, would

not have found necessary). DE 66 at 35-36, 72; DE 69 at 3-4, 8. Moreover, the alterations included

fraudulent, manufactured “proof” that Dr. Campo’s medical documentation supporting

accommodations had been provided to SCCC, when, in fact, this was untrue. DE 66 at 27-28; DE

69 at 4.

As to Dr. DiCanio’s records, Magistrate Judge Lindsay decided – as was her charge – that

defendants failed to establish that his records constituted a forgery. DE 69 at 14-15. De novo

review of the transcript and documents confirms that the magistrate judge was correct in her

determination. That same review, however, sheds light on another question that was not referred

to the magistrate judge: whether the records and related evidence are unreliable and/or the product

of other improper behavior by the plaintiff. Tellingly, the answer to that question is

overwhelmingly affirmative. As has been conceded, the subject records of Dr. DiCanio were not

part of the certified medical record produced by his office, there were multiple versions (signed

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and unsigned) of at least one of these records, these varying versions had substantive differences,

portions of the records were not written by the doctor, and there is indication that the Bates

numbers may have been altered in connection with the submission of these records. See, e.g., DE

63 at 86, 93-100; DE 69 at 14. The doctor testified that it was “possible” that plaintiff created

some of the subject notes which he then signed, including those pertaining to the reasonable

accommodations allegedly requested from SCCC. DE 63 at 69, 85-86. Plaintiff admits that her

handwriting appears on DiCanio’s records, describing an unorthodox “collaboration” between her

and the doctor that is inconsistent with typical methods of producing medical records. Id. at 181.

DiCanio described himself as being “friends” with the plaintiff and, contrary to his usual practice,

provided her with his personal cell phone number. Id. at 27-29. While DiCanio denied that the

plaintiff had ever threatened him, the record includes text messages from the plaintiff to Dr.

DiCanio – sent via that personal cell phone – threatening him with malpractice and disciplinary

action, including one message sent on the eve of his deposition in this case. Id. at 56-66. In one

such message, the plaintiff advised DiCanio that “My evidence will destroy your career.” Id. All

of this evidence led Magistrate Judge Lindsay to conclude that “every one of those doctor’s notes

or treatment notes were written by the plaintiff.” DE 69 at 14. At the same time, Judge Lindsay

found that:

But Dr. Dicanio said notwithstanding the fact that not one of these

documents was written by him and not one of these documents was maintained in

his patient file, he testified under oath that he signed off on them. The practice that

he described was he would simply ask the plaintiff what she wanted included and

he just let her write it out. And so those treatment notes even though he testified

that she was the only patient he allowed to do this, it's clear that these treatment

notes were authorized by him.

Id. at 14-15. Thus, while not forgeries per se, evidence demonstrates that these records were

produced under circumstances that render them questionable, if not entirely unreliable, as the

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Magistrate Judge suggested. Id. at 15 (“there may be some question as to the reliability of these

notes”).

But the de novo review of the record also reveals evidence about additional actions by the

plaintiff that are highly problematic. The documentary evidence reveals that the plaintiff

submitted purported records from the doctors – several of which were pure forgeries – to the EEOC

to obtain the right to sue letter, a required antecedent to this case. DE 63 at 129-30, 155. In 2016,

the defendant reviewed the complaint filed in this case and verified its accuracy, even though it

expressly relies on the forged records from Dr. Campo. Id. at 132-34. Notwithstanding the

incontrovertible falsity of the allegations relating to Dr. Campo’s note, plaintiff continued – in

sworn testimony at the evidentiary hearing before Judge Lindsay – to maintain that such

allegations were true. Id. at 134. She falsely testified that she had received Dr. Campo’s August

9, 2005 report – which the evidence establishes she created years later – on that date from his

office. Id. at 149. In an attempt to explain away the numerous physical and chronological

inconsistencies in the documentary evidence, plaintiff spun tangled and unconvincing tales which,

unsurprisingly, Magistrate Judge Lindsay rejected. See generally id. Such conduct by plaintiff,

who maintained her fabricated claims even under direct questioning by the Court, simply cannot

be condoned. ABF Freight Sys., Inc. v. N.L.R.B., 510 U.S. 317, 323 (1994) (“False testimony in a

formal proceeding is intolerable. We must neither reward nor condone such a ‘flagrant affront’ to

the truth-seeking function of adversary proceedings. . . . Perjury should be severely sanctioned in

appropriate cases.”). Plaintiff brazenly claimed that she and Dr. Campo had “collaborated” to

prepare the forged documents. DE 63 at 190. And plaintiff’s efforts to continue and cover up her

artifice seemingly included documents created to falsely explain the inconsistencies in the forged

documents she had created and submitted; even under questioning by the Court, she quixotically

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clung to her story. Id. at 160-162. And yet she continued to vehemently deny, under oath, that

she had forged or tampered with any documents in this case. Id. at 208.

Within two months of the hearing, on July 26, 2019, Judge Spatt issued his determinations

based on those findings. Esposito, 390 F. Supp. 3d at 430. Judge Spatt granted the defendants’

motion for sanctions as to the forged notes of Dr. Campo, finding, after a de novo review, that

Judge Lindsay’s findings were not only correct, but also confirmed the Court’s view of the

documentary evidence submitted with the motion papers. Id. Judge Spatt ruled that:

[T]he Court finds that, without question, the forged notes occurred as a product of

intentional bad faith; they were an attempt to prejudice the Defendants; and they

were not corrected by the Plaintiff. The Plaintiff fabricated documents that were

central to her disability discrimination claims. She carried out an act of deceit which

raises fundamental questions regarding whether she deserves a determination on

the merits. Her refusal to acknowledge her untruthfulness, notwithstanding the

overwhelming evidence to the contrary, similarly casts doubt on her candor with

the Court and her good-faith participation in the truth-finding process.

Accompanying these deplorable acts, she gave deposition testimony that,

intentional or not, undermines the Court’s view of her capacity to be truthful.

Id. at 431. Judge Spatt noted that he had discretion to dismiss the case based upon these findings.

Id. at 430. Ultimately, however, he determined that plaintiff’s behavior was not “prolonged or

ongoing” and declined to “categorize it as a pattern of misbehavior.” Id. at 431. Therefore, rather

than dismiss the claims outright, Judge Spatt imposed an array of lesser sanctions, including

preclusion of the Campo documents, a negative inference instruction to the jury, a $5,000 monetary

sanction and an award of attorney’s fees and costs. Id.

The Scope and Continued Effects of Plaintiff’s Misconduct

In awarding sanctions short of dismissal – which, of course, does represent an extreme

penalty – Judge Spatt noted that “the forgery of the Campo notes is the only duplicitous behavior

that the Defendants established by clear and convincing evidence[.]” Id. at 432. Particularly in

light of the record now before the Court, a different conclusion is warranted. Plaintiff engaged in

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dishonest, manipulative behavior that ranged far beyond the forgery of Dr. Campo’s notes. As

discussed above, these efforts by plaintiff – many of which are incontestable – included: (1)

submitting false and fraudulent documents to the EEOC well before the filing of this action;2 (2)

attesting to her counsel in 2016 the accuracy of the complaint herein, which is replete with

references to fictitious events and the fraudulently created forgeries; (3) offering false testimony

at her deposition in 2018;3 (4) obtaining, or attempting to obtain, additional documents to support

her perjurious testimony at or around the time of her deposition; and (5) offering unequivocally

false testimony before the Magistrate Judge at an evidentiary hearing in 2019.4 Standing alone,

these events clearly constitute an extended pattern of duplicitous behavior.

Equally important is the subsequent history of this matter. At this writing, nearly 18

months have elapsed since this Court – through independent decisions by Judges Spatt and Lindsay

– condemned plaintiff’s “egregious” behavior, specifically noting that the misdeeds “occurred as

a product of intentional bad faith” and decrying that they “were not corrected by the Plaintiff.”

Esposito, 390 F. Supp. 3d. at 431. Notwithstanding this disconcerting history, litigation has

continued unabated, while plaintiff has taken no steps to correct the record or otherwise

compensate for her contumacious conduct. No amendment has been made to the complaint, which

is still laden with references to fictitious evidence. A review of the massive record reveals nothing

filed by plaintiff to correct the perjurious testimony offered either at her deposition or at the

evidentiary hearing in this Court. Countless days and significant costs have been expended by

defense counsel and the Court in endeavoring to ferret out the falsehoods unreservedly fabricated

2 DE 63 at 205-6.

3 See, e.g., DE 63 at 161-2 (plaintiff insisting that she did not create one of the forged documents).

4 See, e.g., DE 63 at 155-63, 193-200 (creating elaborate false explanations to account for inconsistencies in forged

documents), 191 (falsely denying that she altered one document); 202 (claiming that forged documents were

received in 2005), 208 (responding “absolutely not” to question of whether she tampered with or forged documents).

.

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by the plaintiff, yet the record remains bereft of any effort by plaintiff to correct or otherwise

remedy the numerous false, sworn statements made, the fabricated evidence created or the

attendant harm inflicted by these acts.

Though born of fabrication, the consequences of plaintiff’s deceit are all too real. The most

easily quantifiable of those effects are the economic costs unjustly borne by defendants. At

present, defendants have been able to document unnecessary fees and costs totaling over $80,000.

See, e.g., DE 101-1. While counsel can reasonably quarrel with some of the details of the

application, it is beyond peradventure that plaintiff’s mischief has caused damages of significant

economic magnitude.

Yet the impact of plaintiff’s misconduct goes beyond economic costs inflicted on

defendants and the waste of judicial resources. Plaintiff opted to bring this suit not only against a

public educational institution, but several individuals. Being the subject of a federal civil action

charging invidious discrimination is no small thing, bearing emotional and personal costs that

cannot be remedied by an award of litigation expense. See Anaba v. Cty. of Suffolk, 2014 WL

1411770, at *12 (E.D.N.Y. Apr. 11, 2014) (“[T]he disruption, inconvenience and scrutiny that

accompany civil litigation can have serious impact on individual defendants, including in such

matters as career advancement, applying for a new position or obtaining loans.”). Imposing such

consequences on the individual defendants poses particular concerns given that at least some

allegations are rooted in firmly established falsehoods. See, e.g., DE 1 ¶¶ 56-57 (falsely accusing

defendant Gerli of denying requests made “[i]n accordance with [plaintiff’s] physician’s

indications”).

Indeed, plaintiff shows no indication of regret concerning her sanctionable conduct.

Remarkably, her cross-motion to vacate the imposition of attorney’s fees and the $5,000 sanction

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suggests that whether Judge Spatt “was correct in awarding such sanctions will have to await the

conclusion of proceedings in the District Court.” DE 101-21 at 4. Furthermore, plaintiff argues

that “the alleged forged note was immaterial to the merits of her disability claim.” Id. That

plaintiff makes this suggestion after findings by two judicial officers that the forged documents

were central to plaintiff’s claims, is at best inexplicable and at worst deliberately misleading. See

Esposito, 390 F. Supp. 3d at 431 (“The Plaintiff fabricated documents that were central to her

disability discrimination claims.”); DE 69 at 4 (finding that one of the forged documents “was

central to the claim of disability discrimination and the failure to accommodate”).

Similarly, in opposing summary judgment, counsel for plaintiff argues:

Esposito’s accommodation requests were made through the submission of doctors’

notes.

and

There is proof going back to 2005 that Esposito’s doctors detailed the need for

Esposito to have reasonable accommodations . . . .

DE 110-11 at 4, 23-24 (emphasis added). Read literally, these arguments – suggesting that there

was evidence by multiple doctors in 2005 that plaintiff required accommodations – rest upon the

fictitious documents created by plaintiff. Indeed, the argument expressly rests, at least in part,

upon plaintiff’s false deposition testimony regarding the forged notes. See DE 110-11 at 4 (citing

to plaintiff’s deposition at 126:13-22, in which she discusses the Campo notes). Even if poorly

phrased by pro bono counsel – who seemed to have struggled to avoid references to plaintiff’s

perjurious testimony and fabricated evidence – these arguments demonstrate the inextricable

impact of plaintiff’s deceitful conduct on this proceeding.

Finally, as part of the summary judgment motion, with respect to the suspect records of Dr.

DiCanio, plaintiff attempts to raise issues of material fact based on assertions that serve to resurrect

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her improper conduct and further demonstrate the unreliability of those records. For example,

plaintiff attempts to dispute testimony by the doctor that her handwriting appears on one of his

medical records, claiming that such testimony constitutes an “inadmissible opinion” by Dr.

DiCanio. DE 110-1 ¶ 103. Worse yet, confronted with a medical record from Dr. DiCanio listing

necessary accommodations in her handwriting, plaintiff objects, contending, based on her own

testimony, that “Plaintiff and Dr. DiCanio collaborated” on the note. Id. ¶ 104. This response is

problematic for two reasons: First, patients and medical professionals do not normally act as joint

scriveners in the creation of written medical reports. Second, this fantastic notion of

“collaborating” to create a list of medically-prescribed accommodations mirrors her perjurious

testimony before Magistrate Judge Lindsay to explain away her handwriting on one forged note

from Dr. Campo. Compare DE 110-1 ¶ 104 with DE 63 at 190. This echo of her uncorrected false

testimony emerging in response to summary judgment further undermines any hope that plaintiff

has seen the error of her ways.

Enough is enough.

DISCUSSION

The motions currently pending include: (1) defendants’ submission seeking to recover

attorneys’ fees and costs incurred as a result of plaintiff’s misconduct, and documenting

expenditures of approximately $80,000 (DE 101-9); (2) plaintiff’s cross-motion to reconsider the

award of this sanction and the separate $5,000 sanction imposed, predicated upon, inter alia, her

alleged inability to pay (DE 101-21); and (3) defendants’ motion for summary judgment (DE

109).5 The submissions are weighty – assembled into a stack, the filings measure approximately

5 Because, as set forth herein, plaintiff’s conduct warrants dismissal of all claims, the Court does not reach the merits

of the summary judgment motion. The Court has considered certain materials submitted with the summary

judgment motion only for the purpose of evaluating the appropriate remedy for plaintiff’s misconduct.

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fifteen inches high.

Reconsideration of the Sanctions Order

On her motion, plaintiff moves for reconsideration of Judge Spatt’s sanctions order,

specifically vacatur of the $5,000 economic sanction, reduction of the fees and costs order to 10%

of the amount sought (a reduction of approximately $72,000), and “other and further relief as may

be deemed just, proper and equitable.” DE 101-21 at 13. Plaintiff’s application therefore invites

reconsideration of the propriety of the entire sanctions award, as Judge Spatt’s remedy was

designed to address the harms caused by plaintiff in a comprehensive way. Even assuming,

however, that plaintiff had not moved for reconsideration, the Court retains the discretion to

reconsider Judge Spatt’s order sua sponte. As one court observed:

Under Federal Rule of Civil Procedure 54, “any order or other decision, however

designated, that adjudicates fewer than all the claims or the rights and liabilities of

fewer than all the parties does not end the action as to any of the claims or parties

and may be revised at any time before the entry of a judgment adjudicating all the

claims and all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). “A district

court ... possesses the inherent authority to sua sponte reconsider its own

interlocutory orders before they become final.” Chartis Seguros Mexico, S.A. de

C.V. v. HLI Rail Rigging, LLC, 2015 WL 545565, at *2, 2015 U.S. Dist. LEXIS

15909, at *7 (S.D.N.Y. Feb. 9, 2015). “Sua sponte reconsideration is appropriate

where there is a need to correct a clear error or prevent manifest injustice, there is

an intervening change in the applicable law, or new evidence is available.” Id.

(quoting Benavidez v. Piramides Mayas Inc., 2013 WL 2357527, at *3, 2013 U.S.

Dist. LEXIS, at *7–8 (S.D.N.Y. May 24, 2013)). “Whether such revision is

appropriate in any given case is within the sound discretion of the trial judge.” Acha

v. Beame, 570 F.2d 57, 63 (2d Cir. 1978).

Utica Mut. Ins. Co. v. Munich Reinsurance Am., Inc., 381 F. Supp. 3d 185, 209 n.36 (N.D.N.Y.

2019). Particularly in light of subsequent events and the additional evidence before the Court, the

undersigned finds that it is appropriate to exercise such discretion here.

For the reasons discussed, to the extent that plaintiff’s motion to reconsider sanctions is

predicated on an argument that the forgeries were immaterial or otherwise harmless, the motion is

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rejected as spurious. The gravamen of plaintiff’s motion, though, other than quarrelling with the

amounts sought by counsel, rests on her inability to pay. The materials submitted suggest that

plaintiff cannot pay the full amount of fees sought, lacking the ability to pay the costs already

incurred (let alone additional sums that could be reasonably anticipated should this matter

proceed). Therefore, the Court grants the motion to the extent that it seeks to vacate the award of

attorneys’ fees. At the same time, plaintiff’s financial situation, while difficult, does not excuse

her from the payment of the $5,000 sanction imposed by Judge Spatt, as it appears that she has the

ability to make that payment. Therefore, the motion is granted in part, and denied in part.

Defendants raise the question of deterrence, citing case law suggesting that an inability to

pay should not undermine an attorneys’ fee award. But, as the Second Circuit has held, “fee awards

are at bottom an equitable matter, [and] courts should not hesitate to take the relative wealth of the

parties into account.” Shangold v. Walt Disney Co., 275 F. App'x 72, 74 (2d Cir. 2008) (quoting

Faraci v. Hickey–Freeman Co., 607 F.2d 1025, 1028 (2d Cir.1979)). While the Court retains the

discretion to leave the award of attorney’s fees standing despite plaintiff’s seeming inability to

pay, it declines to do so, as this would represent an exercise in futility.

At the same time, granting the vacatur of the attorney’s fee award – as requested by plaintiff

– compels reconsideration of the efficacy of the remedy crafted by Judge Spatt. The need for

deterrence of such egregious conduct requires that some additional remedy be imposed. “It strikes

us as elementary that a federal district court possesses the inherent power to deny the court’s

processes to one who defiles the judicial system by committing a fraud on the court.” Aoude v.

Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989); Pope v. Fed. Exp. Corp., 974 F.2d 982, 984

(8th Cir. 1992) (finding dismissal of plaintiff’s action appropriate where plaintiff introduced

manufactured evidence and perjured testimony in an attempt to enhance the case). That concern,

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together with the continuing impact of plaintiff’s deceitful acts and the reexamination of that

conduct given the fuller record here, requires dismissal of this case.

Dismissal

It bears repeating that Judge Spatt determined in July 2019 that, given the facts uncovered

in the evidentiary hearing, the Court had the discretion at that time to dismiss plaintiff’s claims.

Esposito, 390 F. Supp. 3d at 430. In determining that he need not do so, Judge Spatt focused on

the third element of the test outlined in McMunn v. Mem'l Sloan–Kettering Cancer Ctr., 191 F.

Supp. 2d 440 (S.D.N.Y. 2002), to wit:

“(1) whether the misconduct was the product of intentional bad faith; (2) whether

and to what extent the misconduct prejudiced the other party; (3) whether there is

a pattern of misbehavior, rather than an isolated instance; (4) whether and when the

misconduct was corrected; and (5) whether further misconduct is likely to continue

in the future.”

Esposito, 390 F. Supp. 3d at 430–31 (quoting McMunn, 191 F. Supp. 2d at 446). Notably, the

third element of the test – whether the misbehavior constitutes a pattern or an isolated instance –

was the sole basis for the decision to refrain from dismissal: Judge Spatt otherwise expressly found

that the actions here were the product of intentional bad faith that prejudiced the opposing parties

and that the misconduct had not been corrected.6 Id. at 431.

Based on the record before him, Judge Spatt found that plaintiff’s behavior in this case was

“not comparable to cases where courts dismissed claims due to fraud on the court.” Id. at 431

(citing, inter alia, Shangold v. Walt Disney Co., 275 F. App'x 72, 73 (2d Cir. 2008)). However,

examination of the record now before the Court suggests that the pattern of misconduct here is

remarkably similar to that in Shangold. The plaintiffs in that case, just like Ms. Esposito,

6 While he made no findings as to the likelihood of future repetition, Judge Spatt determined that the sanctions

imposed – particularly the economic sanctions – would “sufficiently deter future misbehavior.” Esposito, 390 F.

Supp. 3d at 432.

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“submitted fraudulent evidence to the district court in order to bolster their claim,” “offered

testimony that the district court properly found to be false, at their respective depositions, in order

to bolster their claims and continue the fraud,” and made “repeated false statements [which]

show[ed] their willfulness and bad faith,” actions which “resulted in significant costs to the

defendants.” Shangold, 275 F. App'x at 73–74. Upon these facts – which are highly similar to

those of the instant case – the Second Circuit affirmed Judge Pauley’s dismissal of the action,

noting:

While dismissal is indeed a “harsh sanction,” In re Harris, 464 F.3d 263, 272 (2d

Cir.2006), a district court has the inherent power to sanction parties in order to

“manage [the court's] affairs so as to achieve the orderly and expeditious disposition

of cases,” Revson v. Cinque & Cinque, P.C., 221 F.3d 71, 78 (2d Cir.2000).

Shangold, 275 F. App'x at 73. Here, plaintiff’s broad, unmitigated wrongdoing has rendered

impossible any effort to effect an “orderly and expeditious disposition,” and dismissal is required.

In reaching this conclusion, the Court is guided by another decision – raised by the parties

– by Judge Pauley. In Lawrence v. City of New York, 2018 WL 3611963 (S.D.N.Y. July 27, 2018),

defendants moved for dismissal as a sanction under Federal Rules of Civil Procedure 11, 26 and

37, predicated upon the production of photographs during discovery in the case. In that matter, a

civil rights action based upon allegedly improper police conduct during a warrantless search, the

plaintiff provided her attorney with a series of photographs purporting to represent the condition

of her apartment just days after the search. Id. at *1. The attorney produced the photographs in

discovery, and the plaintiff testified under oath that the photographs were taken by her son or a

friend two days after the incident. Id. Later, she changed her account to suggest that she had taken

most of the photos. Id. Examination of metadata revealed that the photographs were created a full

two years after the search. Id. After further proceedings, plaintiff provided several additional

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fabricated accounts attempting to compensate for her false testimony and fabricated evidence. Id.

at *2, 6-7.

As Judge Pauley observed:

The Federal Rules of Civil Procedure provide for sanctions based on

litigation misconduct. Courts also “possess certain inherent powers, not conferred

by rule or statute ... to fashion an appropriate sanction for conduct which abuses the

judicial process.” Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1186

(2017) (citation and marks omitted). Courts have the inherent power to correct a

fraud upon the court. Fraud upon the court exists where a litigant attempts to

“improperly influence[ ] the trier” of fact, “lies to the court and h[er] adversary

intentionally, repeatedly, and about issues that are central to the truth finding

process,” or “knowingly submit[s] fraudulent documents to the Court.” Passlogix,

Inc. v. 2FA Tech., Inc., 708 F. Supp. 2d 378, 395 (S.D.N.Y. 2010) (citation and

marks omitted). A district court has broad discretion in fashioning sanctions under

its “inherent power to manage its own affairs.” Residential Funding Corp. v.

DeGeorge Fin. Corp., 306 F.3d 99, 106–07 (2d Cir. 2002).

. . . .

“Our judicial system generally relies on litigants to tell the truth....”

McMunn, 191 F. Supp. 2d at 445. Therefore, “[f]raud upon the court ... seriously

affects the integrity of the normal process of adjudication.” Hargrove v. Riley, 2007

WL 389003, at *11 (E.D.N.Y. Jan. 31, 2007) (citation and marks omitted).

“[T]ampering with the administration of justice ... involves far more than an injury

to a single litigant. It is a wrong against the institutions set up to protect and

safeguard the public, institutions in which fraud cannot complacently be tolerated

consistently with the good order of society.” Shangold v. Walt Disney Co., 2006

WL 71672, at *4 (S.D.N.Y. Jan. 12, 2006) (citing Hazel-Atlas Glass Co. v.

Hartford-Empire Co., 322 U.S. 238, 246 (1944)).

Lawrence, 2018 WL 3611963, at *2, *6.

Judge Pauley made observations about the conduct in Lawrence that equally apply to the

troubling record in this case:

The creation of staged photos was the beginning of a sustained effort by

Lawrence to mislead Defendants and this Court. . . . Lawrence's attempts to explain

the photographs and her deposition testimony continue a pattern of evasion and

untruths. . . . These shifting explanations are as troubling as the photographs

themselves. This Court does not know how it can credit any of Lawrence's

explanations . . . [and] her pattern of misbehavior appears likely to continue. See

DAG Jewish Directories, Inc. v. Y&R Media, LLC, 2010 WL 3219292, at *5

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(S.D.N.Y. Aug. 12, 2010) (intentional fraud on court and subsequent lies to cover

it up showed that “further misconduct [was] likely”); McMunn, 191 F. Supp. 2d at

462 (litigant's “lies and misconduct will almost certainly continue in the future if

this action is permitted to go forward ... nullifying any chance for a fair adjudication

of the merits”).

. . . .

Finally, Lawrence's “misconduct did not concern a peripheral or an

incidental matter[.] ... Rather, [it] goes to the heart of the case by making it apparent

that defendants can rely only on fraudulent or defective records....” Cerruti 1881,

169 F.R.D. at 583. “[A]ll litigants, including pro ses, have an obligation to comply

with court orders. When they flout that obligation, they, like all litigants, must

suffer the consequences of their actions.” McDonald v. Head Crim. Court

Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988).

Lawrence's deceptive conduct and shifting excuses have completely

undermined her credibility. This Court has no way of knowing what story Lawrence

would offer if this case went to trial. See Hargrove, 2007 WL 389003, at *11

(severe sanctions were warranted based on plaintiff's intentional document

forgeries, which were submitted in discovery and again as exhibits to his motion).

Any sanction less than dismissal, “such as a jury instruction, would be ineffective.”

See McMunn, 191 F. Supp. 2d at 462. And “merely excluding the fabricated

evidence would not only fail to address ... [P]laintiff's other misconduct ... but

would also send the [P]laintiff, and future litigants like [her], the message that they

have everything to gain, and nothing to lose, by continuing to submit fabricated

evidence.” Slate v. Am. Broad. Cos., Inc., 941 F. Supp. 2d 27, 52 (D.D.C. 2013)

(citation and marks omitted) (“Dismissal is particularly appropriate where a

plaintiff seeks to enhance the merits of her case with fabricated evidence and

fictionalized testimony.”).

Id. at *6–7. The instant case is plagued with the very same concerns. Given this history, the Court

has no confidence that plaintiff will not continue to engage in misconduct, cannot anticipate the

testimony that plaintiff would offer before a jury, and finds that her unrelenting, outrageous

conduct thoroughly undermines her credibility. Dismissal is required to remedy the false

testimony and fabricated evidence manufactured by this plaintiff; any lesser sanction, on this

record, would fail to meet the needs of specific and general deterrence required by plaintiff’s

conduct, or provide a just and efficient result in this case.

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CONCLUSION

Based on the foregoing, it is hereby ORDERED as follows:

1. Plaintiff’s motion to reconsider sanctions order is granted in part and denied in

part, and the sanctions order is modified as follows:

a. Judge Spatt’s order directing payment of attorneys’ fees and costs is

vacated based on plaintiff’s inability to pay;

b. Plaintiff is directed to pay the economic sanction of $5,000 previously

imposed; and

c. As an additional sanction for the unmitigated misconduct, plaintiff’s

claims are DISMISSED in their entirety.

2. Defendants’ application for imposition of attorneys’ fees and costs totaling

$80,235.20 is consequently denied;

3. Defendants’ motion for summary judgment is deemed withdrawn in light of the

determinations herein.

The Clerk of the Court is directed to enter judgment consistent with this Order and close the case.

SO ORDERED.

Dated: Central Islip, New York

February 6, 2021

/s/ Gary R. Brown

GARY R. BROWN

United States District Judge

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