| Banushi v Law Off. of Scott W. Epstein |
| 2013 NY Slip Op 06930 [110 AD3d 558] |
| October 24, 2013 |
| Appellate Division, First Department |
| Robert Banushi, Appellant, v Law Office of ScottW. Epstein et al., Respondents. |
—[*1] Antin, Ehrlich & Epstein, LLP, New York (Kimberly S. Edmonds of counsel), forrespondents.
Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered January18, 2012, which granted defendants' motion for summary judgment dismissing thecomplaint and for an order enjoining plaintiff from commencing any further actions ormaking any motions against them without prior court approval, unless he is representedby counsel, and denied plaintiff's motion to amend the complaint, unanimously affirmed,without costs.
Notwithstanding the public policy requiring free access to the courts, the motioncourt's order barring plaintiff from initiating further litigation or motion practice againstdefendants without prior court approval unless he is represented by counsel was justifiedby plaintiff's continuous and vexatious litigation against defendants (Matter of Robert v O'Meara,28 AD3d 567 [2d Dept 2006], lv denied 7 NY3d 716 [2006]; Capogrosso v Kansas, 60AD3d 522 [1st Dept 2009], cert denied 568 US —, 133 S Ct 278[2012]; see also Melnitzky vApple Bank for Sav., 19 AD3d 252, 253 [1st Dept 2005]). Among other things,in addition to the instant action, plaintiff filed a lawsuit in state court and a lawsuit infederal court and a counterclaim in a third suit, as well as a disciplinary complaint, allalleging legal malpractice based on the same sparse allegations, and all unavailing.
Contrary to plaintiff's contentions, the order is not overly broad; it granted the part ofdefendants' motion that sought injunctive relief only as to litigation against them.
While defendants, in their appellate brief, request a modification to require courtapproval even if plaintiff is represented by counsel, and indeed requested such relieffrom the Supreme Court, we are precluded from granting affirmative relief to anonappealing party (see Cox vNAP Constr. Co., Inc., 40 AD3d 459, 462 [2007], citing Hecht v City ofNew York, 60 NY2d 57 [1983]; Sharp v Stavisky, 221 AD2d 216, 217[1995]).
The motion court properly denied plaintiff's cross motion to amend the complaint toinclude additional allegations that defendants produced a forged retainer agreement inconnection with their representation of him in the underlying assault case. Plaintiffacknowledged that an attorney-client relationship existed and failed to state how theforged retainer differed from the purportedly valid signed retainer. He further failed toallege the elements of fraud (seeJ.A.O. Acquisition Corp. v Stavitsky, 18 AD3d 389 [1st Dept 2005]).Moreover, the motion court correctly held that plaintiff's breach of contract and legalmalpractice claims were barred by the [*2]applicablestatutes of limitations, res judicata, and collateral estoppel, and plaintiff's additionalallegations would not alter that determination. Concur—Sweeny, J.P., DeGrasse,Manzanet-Daniels and Clark, JJ.