Opposition Brief — Ulysses I & Co. v. Feldstein

Supromo Goud, US.

my FILED

JUN 1 4 2004

No. 03- l 546 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

ULYSSES I & COMPANY, INC.,

Petitioner,

V.

GARY FELDSTEIN and PETER MORTON,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT GF THE STATE OF NEW YORK

BRIEF IN OPPOSITION

PHILIP PIERCE Kevin L. SMITH

Counsel of Record STROOCK STROOCK

MARGOLIN & Pierce, LLP & LAvAN, LLP

111 West 57" Street 180 Maiden Lane

New York, NY 10022 New York, NY 10038-4982

(212) 247-4844 (212) 806-5400

Counsel for Respondent Counsel for Respondent

Peter Morton Gary Feldstein

187875 ce}

COUNSEL PRESS

(800) 274-3321 © (800) 359-6859

TABLE OF CONTENTS

Page

Tawtie of Cited Authorities ....«. 0.0650... cca ee 11

co gg. a a a re Vv

SE ene ee een cee ee eee ens ]

Statement OF The COS 2... 6 ieee cc esc ccans l

Te Underlying Dispute ...... i.e cc ccc cencrses 2

I as a eo oa ee ee 8

Point I

The Injunction Is Supported By This Court

And Every Geographic Circuit ........... 8

Point II

Ulysses’ Contention About A Fraud Exception

To Rooker-Feldman Is Frivolous ......... 12

I tr eee eee 14

il

TABLE OF CITED AUTHORITIES

Page

Cases:

Canady v. Allstate Insurance Co., 282 F.3d 1005

(8* Civ. 2008) okays Gee 11

Castro v. United States, 775 F.2d 399 (1% Cir. 1985)

Tee ee 11

Catz v. Chalker, 142 F.3d 279 (6" Cir. 1998) ..... 12

Christopher v. Stanley-Bostich, Inc., 240 F.3d 95

(1° Cat BOGE) 6 ivceusee eee 9

Cook y. Peter Kiewit Sons Co., 775 F.2d 1030

(S* Cee 1985) oases eee 11

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384

(1900) «4.3 44655 11

De Long v. Hennessey, 912 F.2d 1144 (9" Cir. 1991)

ee en LF Ri oahy eds 10, 11

Filipas v. Lemons, 835 F.2d 1145 (6" Cir. 1987) .. 11

In Re Burnley, 985 F.2d 1 (4" Cir. 1992) ......... 11

In Re Chapman, 328 F.3d 903 (7" Cir. 2003) ..... ll

In Re Green, 669 F.2d 779 (D.C. Cir. 1981) ...... 11

Ul

Cited Authorities

Page

In re Martin-Trigona, 737 F.2d 1254 (2d Cir.), on

remand, 592 F. Supp. 1566 (D. Conn. 1984),

affirmed, 763 F.2d 140 (2d Cir. >) 9,10

In Re McDonald, 489 U.S. 180 iy. 2 10

Matter of Packer Avenue Associates, 884 F.2d 745

I I 66 osc n eek edececencc... 1]

Nesses v. Shepard, 68 F.3d 1003 (7" Cir 99S)... 12

Resolute Insurance Co. v. State of North Carolina,

397 F.2d 586 (4" Cir. 1968) ................. 12

Riccard v. Prudential Insurance “o., 307 F.3d 1277

ge. AE nee 1]

Sun Valley Foods Co. v. Detroit Marine Terminals,

Inc., 801 F.2d 186 (6" Cir. ae 12

Tripari v. Beaman, 878 F.2d 35 (10" Cir. 1989) ... 1]

Tropf v. Fidelity Title Insurance Co., 289 F.3d 929 |

WI oe edn dees bodes oeidocece.. 9

Villas v. Crowley Maritime Corp., 990 F.2d 1489

a a 1]

Western Systems, Inc. v. Ulloa, 958 F.2d 864 (9" Cir.

oe, Pe ae 10, 11

Willy v. Coastal Corp. 503 U.S. 131 (3992) ...... 1]

ee

iv

Cited Authorities

Statutes:

ISBUSBL. £1981, GAM. 2 cokes eR ee 8

Pete 210 ., . Se ero pean ese rnes 7

TABLE OFAPPENDICES

Appendix A — Order Cf Tie Supreme Court, State

Of New York, I.A.S. Part 10 Suffolk County Dated

SUE TR ee kek kn ee eeaue eee

Appendix B — Order Of The Supreme Court, State

Of New York, I.A.S. Part 10 Suffolk County Dated

CSRDOE 2: BE ok cee pee ee

Appendix C —- Decision And Order Of The Supreme

Court Of The State Of New York, Appellate

Division, Second Judicial Department Dated June

FU CEE Ln 8 dae ee

I

STATEMENT

This joint brief is submitted on behalf of respondents

Gary Feldstein (“Feldstein”) and Peter Morton (“Morton”)

in Opposition to the petition of Ulysses I & Company, Inc.

(“Ulysses”) for a writ of certiorari to the United States Court

of Appeals for the Second Circuit, (the “Petition”). Petitioner

seeks to review that court’s Order dated October 2. 2003

affirming with double costs the Judgment and Order of

the United States District Court for the Southern District of

New York dated August 15, 2002 pursuant to a Memorandum

and Order of Judge Loretta A. Preska dated August 8, 2002.

Judge Preska’s order, inter alia, dismissed the action and

permanently enjoined Ulysses and its principals with respect

to future litigations over the same house on Long Island.

STATEMENT OF THE CASE

This is the second certiorari petition in this dispute.

The first, (Case No. 01-107) like the Petition here, sought to

review a dismissal of a federal action under the Rooker-

Feldman doctrine (brought in the Eastern District of New

York, which action will be detailed below). Both actions

sought to overturn a fully affirmed judgment of Supreme

Court of the State of New York, Suffolk County (the

“Judgment”) decreeing specific performance of a written

contract to transfer title to the single family residence at 57

West End Road, East Hampton, New York (the ““Premises”’)

to Feldstein pursuant to his contract with one Jack Rounick

(“Rounick”). After Feldstein received a sheriff’s deed to the

Premises as provided in the Suffolk County Judgment, he

deeded the residence to Morton pursuant to a subsequent

contract between them. This Court denied Ulysses’ first

certiorari petition, 554 U.S. 992 (2001).

2

This run of the mill real property case has, thanks to

Ulysses’ insatiable appetite for litigation, ballooned into nine

separate actions, four of them initiated in federal courts,

involving the time and attention of a total of thirteen different

courts, seven of them federal. In all courts, trial and appellate,

state and federal, Ulysses has lost unanimously, but it persists.

THE UNDERLYING DISPUTE

Despite Ulysses’ blizzard of litigation, the facts giving

rise to it are surprisingly simple. The Premises, a single family

residence in East Hampton was originally owned by Rounick,

now deceased.

On May 24, 1993, Rounick had contracted in writing to

sell the Premises to Gary Feldstein for seven million dollars.

Pursuant to that contract, Feldstein was given possession of

the Premises while making a series of installment payments,

culminating in the intended transfer of title to him in October

1998.

On August 13, 1998, shortly before Feldstein was to close

on the Premises, Rounick was induced, by the promise of

more money, to contract to sell to Ulysses the same Premises

that he had already contracted to sell to Feldstein. Ulysses is

an assetless corporate shell created to hide the identity of its

actual principal, one Sheldon Solow (“Solow”), a billionaire

real estate entrepreneur with a history of multiple litigations.

Significantly, the Rounick-Ulysses contract was made

expressly subject to Feldstein’s contractual right to purchase

the Premises. Nevertheless, after taking title, Ulysses

sought to thwart Feldstein’s contractual rights. The first

Suffolk County Decision and the Judgment entered thereon

recognized the illegality of this transaction, determined that

3

the conveyance to Ulysses constituted an anticipatory breach

of Rounick’s contract with Feldstein, and directed that clear

title be transferred to Feldstein.

Feldstein had commenced that state court action seeking

specific performance of his contract with Rounick. Ulysses

had counterclaimed, inter alia, for a declaratory judgment

that it owned the Premises and sought an order giving it

possession. When Ulysses moved for summary judgment,

Feldstein cross-moved. Based on a substantial record,

Supreme Court, Suffolk County, per Justice Gerard D’ Emilio,

issued its decision dated January 31, 2000, awarding

Feldstein specific performance (Petition App. N). Judgment

was entered accordingly on February 8, 2000, (Petition

App. M) and was thereafter fully affirmed by the Appellate

Division, Second Department of the New York Supreme

Court and leave to appeal to the Court of Appeals was denied.

After Ulysses had tried fruitlessly through the New York

appellate courts to vacate the Suffolk County J udgment, and

after the Suffolk County Supreme Court denied Ulysses’ three

subsequent motions to reopen the underlying litigation

(all affirmed by Appellate Division), Feldstein finally

received a sheriff’s deed to the Premises as provided in the

Judgment. He, in turn, deeded it to the Morton Lifetime Trust

pursuant to his contract with Morton.

Besides its efforts in the original Suffolk County action,

Ulysses instituted a number of other actions, summarized as

follows,

KEEN ALON REMIT

a

SEI INGA CR RD Sy TTR IS, PO ECS eR OT ET

COURT

Supreme Court,

Suffolk County

Village Court,

East Hampton

USDC, Eastern

District of

New York

USDC, Eastern

District of

New York

PLAINTIFF

Feldstein

Ulysses

Ulysses

Ulysses

OTT

DEFENDANT

Ulysses

(counterclaimant)

Feldstein

Morton

Feldstein, Morton,

Gibbs, various local

governments

RESOLUTION

Fully affirmed

summary judgment

for Feldstein. Three

motions to renew

denied and all such

denials affirmed by

New York’s Appellate

Division, Second

Department

Voluntarily

withdrawn

Action dismissed

Action dismissed by

District Court, affirmed

by Second Circuit,

Certiorari denied.

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COURT

8. Supreme Court,

Suffolk County

(Subject to appeal)

9. Supreme Court,

New York County

PLAINTIFF

Ulysses

Ulysses

DEFENDANT

Feldstein and Morton

First American

Title and

Congressional

Abstract

RESOLUTION

Motion to Dismiss

granted

Action dismissed.

Affirmed, Appellate

Division, Firs.

Department

7

In Ulysses’ characteristic style, the Statement of Facts in

its Petition, like its Complaint dismissed by Judge Preska,

York State courts. The Petition is also interlarded with aspersions

directed at the New York judges. Thus at p. 7, it states that a

State court decision was “contrary to law and fact”; at p. 8, it

States Justice Jones “inexplicably reversed himself” and on p.9

it states the sheriff's deed to Feldstein “ illegally purported to

transfer title”, arguments already rejected by the New York

appellate courts. These misstatements are so pervasive, it would

be fruitless to try to correct all of them. In any event, the issues

final and binding.

Of particular relevance is Ulysses’ second Eastern

District Action. It was brought under the Civil Rights Act,

42 U.S.C. § 1983 against Feldstein, Morton, Morton’s Sister,

Mara Gibbs and a variety of state and iocal governments.

On August 1, 2002, Judge Denis R. Hurley dismissed the

action against Feldstein and Morton based on the Rooker-

Feldman doctrine, res Judicata and collaterial estoppel and

as against the governmental defendants for failure to allege

a valid Civil Rights Act Claim (Petition App. K).

That dismissal was affirmed by the Second Circuit in a

summary order (Petition App. E) and this Court denied

Certiorari. After J udge Hurley dismissed the second Eastern

District Action and the New York Courts affirmed the Suffolk

County judgment, Ulysses and its affiliate Bridgewater

Operating Corporation instituted the Southern District action,

8

which is the subject of the Petition, under the Racketeer

Influenced & Corrupt Organizations Act, 18 U.S.C. § 1961,

et seq. (“RICO”). This action was originally brought against

Feldstein, Morton, their lawyers and others based on contentions

previously made unsuccessfully in Ulysses’ Eastern District Civil

Rights action, its state court appeals and its serial motions to

vacate the state court Judgment. Eventually after two

amendments to the Complaint, Feldstein became the only

defendant. That action was dismissed by Judge Preska based

on Rooker-Feldman and res judicata. She also enjoined Ulysses

and its principals from further litigation over the Premises in

the federal courts without court approval while requiring a copy

of the decision and judgment be appended to any future state

court action brought by Ulysses (Petition App. D) The Second

Circuit affirmed, imposing double costs “‘in light of Ulysses’

extreme history of persistent, repetitive and vexation litigation

involving the Premises and particularly in light of the frivolous

nature of the instant appeal” (App. B p. B-7).

ARGUMENT

POINT I

THE INJUNCTION IS SUPPORTED

BY THIS COURT AND EVERY

GEOGRAPHIC CIRCUIT

The Petition seeks to concoct a dispute between the Second

Circuit and other courts of appeal on the issuance of Judge

Preska’s injunction. Ulysses first tries to stitch together two

different issues: (1) Can a district court issue an injunction

involving future state court litigation; and (2) Can a district court

issue an injunction against future litigations after it has held it

lacks subject matter jurisdiction over the action giving rise to

the injunction.

9

As to the first issue, Ulysses cites two Cases where the courts

of appeals vacated district court orders impinging on state court

authonity. Thus, in Tropf v. Fidelity Title Insurance Co., 289

F.3d 929 (6" Cir, 2002) when the district court imposed a

requirement that the enjoined plaintiff post a $50,000 bond

before starting a new state action the Sixth Circuit reversed it

as an “indirect” injunction against future state court actions.

Similarly, Christopher y, Stanley-Bostich, Inc., 240 F.3d 95

(1* Cir. 2001) struck down a provision in an order remanding a

case back to state court for lack of subject matter jurisdiction

which would limit plaintiff’s damages in state court consistent

with his argument giving rise to the remand that his damages

were less than the federal jurisdictional amount. But the First

Circuit was careful to point out that the state court was free to

decide under its own law the estoppel effect of plaintiff’s

argument on his remand motion, but “it was not the province of

the federal district court to dictate that result to the state court”

(at p. 101).

Here the district court did not dictate to the state court.

Rather, as both Judges Preska (App. D, pp. D-26 — 28) and the

Second Circuit (App. B, p. B-6) pointed out, the injunction was

in accordance with the much cited case of Jn re Martin-Trigona,

737 F.2d 1254 (2d Cir.), on remand, 592 F. Supp. 1566

(D. Conn. 1984), affirmed, 763 F.2d 140 (2d Cir. 1985).

In its original decision there the Second Circuit, while vacating

a “blanket extension” of its injunction to state courts as an

“intrusion into state proceedings”, went on to hold “a spirit of

cooperative federalism calls upon us to alert state courts”.

That injunction leaves the state court free to decide for itself

what it should do in light of such alert. The Martin-Trigona

order drafted by the district court on remand and enthusiastically

affirmed by the Second Circuit became the model for Judge

Preska’s injunction here (App. C). .

10

The fact that the injunction in no way enjoined future

state litigation can be seen by Ulysses’ subsequent actions.

Within a month of Judge Preska’s judgment, it instituted a

new action against Feldstein and Morton seeking title to the

Premises in Supreme Court, Suffolk County. In its Complaint,

Ulysses followed the letter of Judge Preska’s injunction.

That action was dismissed by Justice John J. J. Jones, Jr. in

a decision dated June 13, 2003 (appended as Appendix A

hereto) based both on res judicata and Ulysses’ complaint’s

lack of merit. Like Judge Preska, Justice Jones found Ulysses

“lacked a good faith basis for commencing this action and

had no objective good faith expectation it could prevail.”

Accordingly, he also enjoined future actions by Ulysses.

(Ulysses’ appeal is now pending in the New York Appellate

Division, Second Department).

Martin-Trigona, has received wide acceptance by

federal courts throughout the country. This Court quoted it

in In Re McDonald, 489 U.S. 180 n.8 at 185 (1989).

Of particular significance is the decision of the

Ninth Circuit, the court Ulysses contends is in conflict with

the Second Circuit, in De Long v. Hennessey, 912 F.2d 1144

(9" Cir. 1991) which criticized a district court for not

following the procedure in Martin-Trigona, in issuing an

injunction against future litigation.

The Ninth Circuit did disagree with the Second Circuit

in Western Systems, Inc. v. Ulloa, 958 F.2d 864 (9" Cir. 1992)

but for the reason that it adopted what the Ninth Circuit

considered to be an overly restrictive rule on enjoining state

court litigation.

1]

Every other geographic circuit follows a liberal rule on

enjoining future vexatious litigation: See e.g.

Castro v. United States, 775 F.2d 399 (1* Cir.

1985)

Matter of Packer Avenue Associates, 884 F.2d 745

(3* Cir. 1989)

In Re Burnley, 985 F.2d 1 (4" Cir. 1992)

Villas v. Crowley Maritime Corp., 990 F.2d 1489

(S" Cir. 1993)

Filipas v. Lemons, 835 F.2d 1145 (6" Cir. 1987)

In Re Chapman, 328 F.3d 903 (7 Cir. 2003)

Canady v. Allstate Insurance Co., 282 F.3d 1005

(8" Cir. 2002)

Tripari v. Beaman, 878 F.2d 35 (10" Cir. 1989)

Riccard v. Prudential Insurance Co., 307 F.3d

1277 (11" Cir. 2002)

in Re Green, 669 F.2d 779 (D.C. Cir. 1981)

Thus Ulysses’ argument comes down to the Ninth Circuit

decision in Cook v. Peter Kiewit Sons Co., 775 F.2d 1030

(9 Cir. 1985). That case was decided before both of the two

decisions of this Court on which the Second Circuit relied

here, Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990);

Willy v. Coastal Corp. 503 U.S. 131 (1992) and its own

decisions in De Long and Western Systems. There is no

indication that the Ninth Circuit would revert to Cook after

this Court’s clarification of the powers of a district court after

it dismisses a case for lack of subject matter jurisdiction.

12

POINT II

ULYSSES’ CONTENTION ABOUT

A FRAUD EXCEPTION TO

ROOKER-FELDMAN IS FRIVOLOUS

Ulysses’ contention that this case raises an issue about a

purported fraud exception to Rooker-Feldman is frivolous

for three different reasons. In the first place, it is precluded

from raising that issue by res judicata. Its earlier Civil Rights

Act action making the same allegations was dismissed by

the Eastern District under Rooker-Feldman (App. K), that

dismissal was affirmed by the Second Circuit specifically

because of Rooker-Feldman (App. E) and this Court denied

certiorari. Thus Ulysses is precluded from contending

Rooker-Feldman does not apply in this action by basic

principles of res judicata.

Second, the principal cases relied upon by Ulysses,

Nesses v. Shepard, 68 F.3d 1003 (7" Cir. 1995) and Caiz v.

Chalker, 142 F.3d 279 (6" Cir. 1998) both involve allegations

of judicial impropriety. The other cases cited by Ulysses;

Sun Valley Foods Co. v. Detroit Marine Terminals, Inc., 801

F.2d 186 (6" Cir. 1986) and Resolute Insurance Co. v. State

of North Carolina, 397 F.2d 586 (4" Cir. 1968) contained

general dictum while holding there was no factual basis

whatsoever for plaintiff’s allegations (the Seventh Circuit

also so held in Nesses which concerned the proper basis for

dismissing the complaint there, Rooker-Feldman or res

judicata).

But at best, Ulysses here is alleging impropriety by “court

employees” not “judicial officers”, as it admitted at p. 34 of

its brief in the Second Circuit. Consequently, Ulysses is

13

bound by the numerous rejections of its contentions by the

undisputedly uncorrupted “judicial officers” of the New York

Court system in its appeal from the Suffolk County judgment,

its three unsuccessful motions to vacate that judgment and

the appellate affirmance of the denials of such motions.

Ulysses’ purported authorities are simply not in point here.

Finally, Ulysses’ allegations, summarized by it at pp. 24-

26 of its Petition, do not allege criminal activities of any

sort, let alone a RICO violation. Rather, they raise issues of

New York civil practice already decided against it by the New

York courts in its original state court appeal and its serial

motions to vacate the Suffolk County Judgment. Ulysses’

arguments are interspersed with half truths such as saying at

p. 26 that the purported findings of misconduct in a May 14,

2001 decision of Justice Jones (Petition App. L) was not

disturbed by him, deliberately ignoring that on October 2,

2001 Justice Jones entered an order which expressly vacated

those findings “in their entirety” and indicated that the sheriff

could proceed to execute a deed to the Premises (annexed

hereto as Exhibit B). The Second Department upheld this

order in a decision dated June 10, 2002 specifically holding

that Ulysses “failed to establish that the judgment was

procured by fraud, misrepresentation or other misconduct”

(annexed hereto as Exhibit C). Ulysses also engages in

irrelevancies such as saying at p. 26 that the state court file

was subpoenaed by the FBI in June 2000, as if a subpoena

which, four years later, has resulted in absolutely no further

legal action is proof of anything other than there was no basis

for any legal action.

14

Such multi-flawed meritless arguments by Ulysses have

been characterized by United States District Judge Preska,

New York Supreme Court Justice Jones and the Second

Circuit as lacking in good faith. Here, such arguments

constitute an abuse of the certiorari process.

CONCLUSION

For all the reasons stated herein, it is prayed that the

Petition be denied.

Respectfully submitted,

PHILIP PIERCE

Counsel of Record

MARGOLIN & Pierce, LLP

111 West 57" Street

New York, NY 10022

(212) 247-4844

Counsel for Respondent

Peter Morton

Kevin L. SMITH

STROOCK STROOCK

& Lavan, LLP

180 Maiden Lane

New York, NY 10038-4982

(212) 806-5400

Counsel for Respondent

Gary Feldstein

’

ST ET ge eee

o rae

err = 3

7 OR

APPENDIX

SP IT

a I a

. 2

la

APPENDIX A— ORDER OF THE SUPREME COURT,

STATE OF NEW YORK, I.A.S. PART 10 SUFFOLK

COUNTY DATED JUNE 13, 2003

SHORT FORM ORDER INDEX NO.: 0024758/2002

SUBMIT DATE: 6/4/2003

MTN. SEQ. #: 001; 002; 003; 004

SUPREME COURT - STATE OF NEW YORK

I.A.S. PART 10 SUFFOLK COUNTY

Present:

HON. JOHN J.J. JONES, JR.

Justice

MOTION DATE: _ 11/6/2002

MOTION NO.: 001 - MOT D

002 - XMOT D

003 - XMD

004 - XMD

ULYSSES I & COMPANY, INC.,

Plaintiff,

-against-

GARY FELDSEIN and PETER MORTON (Individually and

as trustee for the PETER MORTON LIFETIME TRUST,

Defendants.

2a

Appendix A

SHELDON SOLOW and STUART SCHLESINGER,

Additional Defendants

on counterclaim

Upon the following papers numbered 1 to 98 read on

this motion and cross-motion for summary judgment, cross-

motion to vacate restraining order and cross-motion for

partial summary judgment; Notice of Motion/Order to Show

Cause and supporting papers /-63; Notice of Cross Motion

and supporting papers 64-74; 82-84; 85-91; Answering

Affidavits and supporting papers 75-76; 77-81; 92-94; Reply

Affidavits and supporting papers 95-96; 97-98; Other

; it is

ORDERED that this motion by defendant, Peter Morton,

individually and as trustee for the Peter Morton Lifetime Trust

(Morton), and cross-motion by the co-defendant, Gary

Feldstein, to the extent they seek an order severing the

counterclaims and dismissing the amended complaint of

plaintiff, Ulysses I & Company, Inc. (Ulysses), is granted;

and it is further

ORDERED that upon payment of the proper fees, if any,

the County Clerk of the County of Suffolk be and is hereby

directed to cancel and discharge of record a certain notice of

pendency filed in this action against the property at District

0301, Section 01500, Block 05.00, Lot 008.000, known as

57 West End Road, Town of East Hampton, County of

Suffolk, State of New York, and the said County Clerk is

hereby directed to enter upon the margin of the record of

same a notice of cancellation referring to this Order; and it

is further

3a

Appendix A

ORDERED that the application by defendant Morton for

an order of attachment is denied and the temporary restraining

order imposed by order to show cause dated October 22, 2002

and extended by order of this Court dated February 5, 2003

is vacated; and it is further

ORDERED that the separate motion by plaintiff, deemed

herein to be a cross-motion, to the extent it seeks partial

Summary judgment on its claims for declaratory and

injunctive relief is denied as moot for reasons set forth herein;

and it is further

ORDERED that the cross-motion by defendant Morton

for an order granting partial summary judgment on the

counterclaims is denied; and it is further

ORDERED that Ulysses, its agents, employees,

shareholders, directors and officers are hereby enjoined from

commencing any action or proceeding in the Courts of the

State of New York that is in any way, directly or indirectly,

connected with or related to the premises located at 57 West

End Road, Town of East Hampton, County of Suffolk, State

of New York, unless a complete, legible copy of this Order

and the Judgment to be entered thereon has been affixed to

each document filed in connection with such action or

proceeding; and it is further

ORDERED that in all other respects ithe motion and

cross-motions are denied.

4a

Appendix A

Plaintiff commenced this action for a declaratory

judgment declaring null and void a certain sheriff’s deed

dated October 3, 2001 and a deed from Feldstein to Peter

Morton Lifetime Trust for the premises at 57 West End Road,

East Hampton, New York, for an order directing the

defendants to surrender title and possession of the premises

to plaintiff, and awarding damages for alleged alteration of

documents filed with the Suffolk County Clerk. Defendant

has asserted a counterclaim for tortious interference with

contract, malicious prosecution, prima facie tort and abuse

of process. Defendant Morton now moves and co-defendant

Feldstein cross-moves for an-order granting summary

judgment in their favor dismissing the complaint against

them, vacating the notice of pendency filed by the plaintiff,

enjoining the plaintiff from filing or joining in actions relating

to the subject premises without prior leave of Court and

awarding sanctions. Plaintiff has opposed the application and

has cross-moved for partial summary judgment in its favor.

Likewise, defendant Morton has cross-moved for an order

granting summary judgment on his counterclaims against

Ulysses and defendants Sheldon Solow and Stuart

Schlesinger and for an order vacating the mortgage from

Ulysses to Solow filed with the County Clerk on August 29,

2000.

The history of this action has been set forth at length in

the order of the Court dated January 31, 2000 (D’Emilio, J.)

and judgment entered February 7, 2000 which granted

specific performance of a contract to transfer title, free and

clear of all encumbrances, to the certain premises located at

57 West End Road, East Hampton, New York to Feldstein.

Such judgment was affirmed by Decision and Order of the

Sa

Appendix A

Appellate Division, Second Department, dated October 10,

2000. An appeal to the Court of Appeals was dismissed on

December 21, 2000 with $500 costs against Ulysses and

successive motions by Ulysses for leave to appeal weve

denied. Subsequent motions by Ulysses for leave to renew

the determination which, in effect, disallowed Ulysses’ claim

to title to the premises and awarded title to Feldstein, were

denied by this Court in orders dated May 14, 2001, and

October 2, 2001, and January 25, 2002, all of which were

affirmed by the Appellate Division, Second Department.

Leave to reargue or appeal to the Courtof Appeals those

three orders was denied by order dated J anuary 17, 2003.

An action commenced by Ulysses in United States

District Court of the Eastern District of New York which

raised many of the same arguments asserted in the Suffolk

County action was dismissed from the bench by the Hon.

Denis R. Hurley for lack of subject matter jurisdiction under

the Rooker-Feldman doctrine (see Rooker v. F idelity Trust

Co., 263 US 413 [1923]; see also District of Columbia Court

of Appeals v. Feldman, 460 US 462 [ 1983]). On April 18,

2001, the Second Circuit Court of Appeals affirmed the trial

court determination and a subsequent petition for a writ of

certiorari was denied. By sheriff’s deed dated October 3, 2001

which was filed on October 10, 2001, title to the premises

was transferred to Feldstein. A second action was commenced

by Ulysses in the United States District Court for the Southern

District of New York in November 2001, after the filing of

the sheriff’s deed, containing various allegations against

Feldstein relating to the subject property. It, too, was

dismissed by memorandum and order dated August 8, 2002

(Preska, J.) under the Rooker-Feldman doctrine and on the

ground that the claims were res judicata.

6a

Appendix A

Notwithstanding the foregoing history of litigation,

plaintiff commenced this action for declaratory judgment and

fiied yet another notice of pendency against the subject

property. The ultimate relief sought by plaintiff in this action,

a declaration that neither Morton nor his predecessor,

Feldstein, obtained title to the subject property, is sufficiently

related io the relief sought in the prior state and federal

actions, however, so as to bar such relief under the doctrine

of res judicata. As a general rule, “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”

(Parker v. Blauvelt Vol. Fire Co., Inc., 93 NY2d 343, 712

NE2d 647, 650, 690 NYS2d 478 [1999], quoting O’Brien v.

City of Syracuse, 54 NY2d 353, 357). Thus, the Courts of

this state have held that where a plaintiff in a later action

brings a claim and could have been asserted in a previous

action against the same party, based on the same harm and

arising out of the same or related facts, the claim is barred

by res judicata (see Parker v. Blauvelt Vol. Fire Co., Inc.,

supra at 93 NY2d 349, citing Pauk v. Board of Trustees, 111

AD2d 17, 20, affd 68 NY2d 702). Moreover, as the previous

actions all determined that Ulysses had no right to title and

that title rightfully belonged to Feldstein, Ulysses has no

standing to challenge the validity of the deeds which have

been filed in the office of the County Clerk. Accordingly,

defendants’ motion and cross-motion, to the extent they seek

an order severing the counterclaims and dismissing the

complaint against them, are granted and the notice of

pendency filed against the subject property is vacated.

7a

Appendix A

To the extent that defendant Morton seeks an order

attaching funds presently held in escrow by Stroock, Stroock

& Lavan, LLP, such application is denied. While it has been

held that a foreign corporation which filed a post-attachment,

pre-confirmation application to do business can not, by that

act alone, cause an order of attachment to be vacated (see

Elton Leather Corp. v. First General Resources Co., 138

AD2d 132, 137, 529 NYS2d 769 [1 Dept 1988]), no order

of attachment was obtained prior to the receipt by plaintiff

Ulysses of authority to do business in New York. Since

defendant has otherwise failed to demonstrate that the

requirements for attachment under CPLR 6201 have been

satisfied, the temporary restraining order must be vacated

and the request for attachment denied (see Benedict v.

Browne, 289 AD24 433, 735 NYS2d 404 [2d Dept 2001).

Defendant Morton’s application for an order granting

summary judgment or. his counterclaims and vacating the

mortgage from Ulysses to Solow is denied, without prejudice

to renew upon a proper evidentiary showing. The courts have

repeatedly held that in order to obtain summary judgment,

movant must establish its claims or defenses sufficiently to

warrant a court’s directing judgment in its favor as a matter ~

of law (see Gilbert Frank Corp. v. Federal Insurance Co.,

70 NY2d 966, 525 NYS2d 793, 520 NE2d 512 [1988], citing

Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d

595, 404 NE2d 718 [1980]; Friends of Animals v. Associated

Fur Mfrs., 46 NY2d 1065, 416 NYS2d 790, 390 NE2d 298

[1979]). Defendant has failed to demonstrate his prima facie

entitlement to judgment in his favor, as the purported

verification of his answer with counterclaims erroneously

indicates that he is the plaintiff and that the allegations

8a

Appendix A

contained in the “Verified Complaint” are true and correct.

Since the affidavit of defendant dated October 2, 2003 is

insufficient in itself to establish each element of the claims

asserted against the plaintiff and additional defendants on

the counterclaims, summary judgment in favor of defendant

Morton must be denied (see Puritan Ins. Co. v. Continental

Cas. Co., 195 AD2d 291, 599 NYS2d 602 [1st Dept 1993],

citing Zuckerman vy. City of New York, supra at 49 NY2d

563).

As observed by Judge Preska in the aforementioned

second federal action commenced by plaintiff, Ulysses has a

history of duplicative litigation with respect to its claims

against the subject property. Since its claims have been

repeatedly and consistently rejected by the courts of this state

and federal courts, it lacked a good faith basis for

commencing this action and had no objective good faith

expectation that it could prevail. Plaintiff has repeatedly

imposed unnecessary burden and expense upon the courts as

well as the defendants and, as it appeared that plaintiff will

cease to engage in vexatious litigation absent an order

enjoining it from doing so, the defendants’ application for

an order enjoining the plaintiff from commencing additional

actions or proceedings in the Courts of this State in

cornection with the subject property is granted to the extent

indicated herein.

Settle judgment on notice.

DATED: /3 June 03 s/ John J.J. Jones, Jr.

HON. JOHN J.J. JONES, JR.

5.3.C.

CHECK ONE: _ FINAL DISPOSITION

X NON-FINAL DISPOSITION

9a

APPENDIX B — ORDER OF THE SUPREME COURT,

STATE OF NEW YORK, I.A.S. PART 10 SUFFOLK

COUNTY DATED OCTOBER 2, 2001

SHORT FORM ORDER INDEX NO.: 0020970/1998

SUBMIT DATE: 7/11/2001

MTN. SEQ. #: 015; 016

SUPREME COURT - STATE OF NEW YORK

I.A.S. PART 10 SUFFOLK COUNTY

Present:

HON. JOHN J.J. JONES, JR.

Justice

MOTION DATE: 7/3/2001

MOTION NO.: 015 - MD

016 - XMOT D; CASEDISP

GARY FELDSTEIN,

Plaintiff,

-against-

JACK ROUNICK and ULYSSES I & COMPANY, INC.,

Defendants.

Upon the following papers numbered 1 to 45 read on

this motion and cross-motion for leave to reargue; Notice of

Motion/Order to Show Cause and supporting papers /-2/;

10a

Appendix B

Notice of Cross Motion and supporting papers 22-39;

Answering Affidavits and supporting papers 40-4/; 42-43;

Replying Affidavits and supporting papers 44; 45; Other

- It 1S,

ORDERED that this motion by defendant, Ulysses I

& Company, Inc., for an order granting leave to renew and/

or reargue its prior motion which was determined by the order

of this Court dated May 14, 2001 is denied; and it is further

ORDERED that the cross-motion by plaintiff, Gary

Feldstein, to the extent it seeks an order granting leave to

reargue the aforesaid motion by defendant and its cross-

motion is granted and, upon such reargument, the second

and third decretal paragraphs in the Order of this Court dated

May 14, 2001 are hereby vacated in their entirety and the

aforementioned judgment of the Hon. Gerard D’Emillio

remains in full force and effect (see Feldstein v. Rounick,

276 AD2d 523, 714 NYS2d 689 [2d Dept 2000] appeal

denied, 96 NY2d 707, 749 NE2d 207, 725 NYS2d 638

[2001]; and it is further

ORDERED that to the extent the cross-motion by

plaintiff seeks an order directing the Sheriff of Suffolk County

to execute a deed to the premises located at 57 West End

Road, East Hampton, New York, such application is denied,

since the aforementioned judgment of the Court is self

effectuating upon defendants’ failure or refusal to execute a

deed and transfer title by March 10, 2000.

DATED: 2 Oct. 01 s/ John J.J. Jones, Jr.

HON. JOHN J.J. JONES, JR.

J.8.C.

lla

APPENDIX C — DECISION AND ORDER OF THE

SUPREME COURT OF THE STATE OF NEW YORK,

APPELLATE DIVISION, SECOND JUDICIAL

DEPARTMENT DATED JUNE 10, 2002

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION :

SECOND JUDICIAL DEPARTMENT

__AD2D __ Argued — May 7, 2002

NANCY E. SMITH, J.P.

CORNELIUS J. O’BRIEN

HOWARD MILLER

BARRY A. COZIER, JJ.

2001-05541

2001-08854

_Gary Feldstein, respondent, v Jack Rounick, defendant,

Ulysses I & Company, Inc., appellant.

(Index No. 20970/98)

DECISION & ORDER

Mintz & Gold LLP, New York, N.Y. (Vito J. Titone of

counsel), Dreier & Baritz LLP, New York, N.Y. (Marc

S. Dreier of counsel), and David Boies, Armonk, N.Y.,

for appellant (one brief filed).

Stroock & Stroock & Lavan LLP, New York, N.Y. (Kevin

L. Smith and Heidi Balk of counsel), for respondent.

12a

Appendix C

In an action, inter alia, for specific performance of a

contract for the sale of real property, the defendant Ulysses |

& Company, Inc., appeals from so much of (1) an order of

the Supreme Court, Suffolk County (Jones, J.), dated May

14, 2001, as denied its motion for leave to renew the

plaintiff’s cross motion for summary judgment, and (2) an

order of the same court, dated October 2, 2001, as denied its

motion for leave to renew and/or reargue the order dated May

14, 2001, and granted the plaintiff’s cross motion for

reargument, and, upon reargument, inter alia, reinstated a

judgment of the same court dated February 7, 2000, which

directed specific performance of the contract.

ORDERED that the appeal from the order dated May

14, 2001, is dismissed, as that order was superseded by the

order dated October 2, 2001, made upon reargument; and it

is further

ORDERED that the appeal from so much of the order

dated October 2, 2001, as denied that branch of the appellant’s

motion which was for leave to reargue is dismissed, as no

appeal lies from an order denying leave to reargue; and it is

further,

ORDERED that the order dated October 2, 2001, is

affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the

plaintiff.

The Supreme Court initially granted summary judgment

to the plaintiff and issued a judgment dated February 7, 2000,

l3a

Appendix C

which, inter alia, directed specific performance of a contract

for the sale of real property. The judgment was affirmed on

appeal (see Feldstein v. Rounick, 276 AD2d 523). The

appellant subsequently moved to vacate the judgment

pursuant to CPLR 5015(1)(2) and (3) and for leave to renew

the plaintiff’s motion for summary judgment. The Supreme

Court, in the order dated May 14, 2001, vacated the judgment

pursuant to CPLR 5015(a)(3) and directed the plaintiff to

submit a new judgment. However, the court adhered to its

determination that the plaintiff was entitled to specific

performance of the contract.

The appellant moved for leave to renew and/or reargue

the order dated May 14, 2001, and the plaintiff cross-moved

for leave to reargue. By order dated October 2, 2001, the

Supreme Court denied the appellant’s motion, granted the

plaintiff's cross motion, and, upon granting reargument to

the plaintiff, reinstated the judgment dated F ebruary 7, 2000.

We affirm.

The Supreme Court properly denied that branch of the

appellant’s motion which was to vacate the judgment

pursuant to CPLR 5015(a)(3), as the appellant failed to

establish that the judgment was procured by fraud,

misrepresentation, or other misconduct. The Supreme Court

also properly denied that branch of the appellant’s motion

which was based on CPLR 5015(a)(2), as the appellant failed

to show that the alleged newly-discovered evidence could

not have been discovered with due diligence before entry of

the judgment (see Orix Credit Alliance v. Grace Indus., 274

AD2d 424; Dan's Supreme Supermarkets v. Redmont Realty

Co., 261 AD2d 353).

l4a

Appendix C

The appellant’s remaining contentions are without merit.

SMITH, J.P., O°-BRIEN, H. MILLER and COZIER, JJ.,

concur.

ENTER:

James Edward Pelzer

Clerk

June 10, 2002