SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------- x ANTHONY ZAPPIN, Plaintiff, - against - CLAIRE COMFORT, Defendant.

Index No. 301568/14

AFFIDAVIT OF ANTHONY ZAPPIN Mot. Seq. #27

------------------------------------------------------------- x STATE OF NEW YORK ) : ss COUNTY OF NEW YORK ) ANTHONY ZAPPIN, being duly sworn, deposes and says: I submit this affidavit in support of my Order to Show Cause seeking inter alia: (i) the

recusal of Justice Matthew Cooper from the above-captioned action; (ii) vacatur of the Court’s

September 18, 2015 decision; (iii) a stay of the Court’s September 18, 2015 imposition of

sanctions; and (iv) other various relief. I have not sought the relief requested herein in this Court

or any other court. Pursuant to 22 NYCRR 202.7, the Court and counsel were notified that this

emergency motion on September 18, 2015. (See Ex. 1, Oct. 27, 2015 E-mail.)

I. INTRODUCTION

On September 18, 2015, Justice Matthew Cooper issued a decision (the “September 18

Decision”) with the sole intent to inflict harm on my reputation and destroy my livelihood. This

is evident by the fact that the September 18 Decision is rife with misstatements of fact,

inaccuracies and material omissions. Justice Cooper even carried on to improperly cast

aspersions directed personally at my character demonstrating clear animus.

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Most importantly, by issuing the September 18 Decision, publishing it unredacted and

disseminating it to the media, Justice Cooper irreparably and unequivocally harmed the child at

issue in this matter. Not only did Justice Cooper destroy the earning power of one of the child’s

parents, but he placed unnecessary public attention on the child and divulged sensitive

information about the child’s formative years – from what Justice Cooper himself has termed a

“presumptively sealed” proceeding (see July 22, 2015 Tr. at 27:6-7) – on the omnipresent

Internet indefinitely accessible at the fingertips of anyone with a computer. There was

absolutely no requirement or reason for Justice Cooper to publish the September 18 Decision.

See Domestic Relations Law § 235. There is no question that Justice Cooper’s conduct was

clearly contrary to the best interests of the child. It is inconceivable that Justice Cooper can now

determine the best interests of a child that he has so permanently and extensively harmed.

For the reasons set forth below, I respectfully request that Justice Cooper recuse himself

from further presiding over this matter. Additionally, I request that the September 18 Decision

be vacated (or in the alternative amended) and placed under seal.

II. BACKGROUND OF THE LITIGATION

This litigation began in November 2013 after Ms. Comfort – admittedly “unstable” (see

App. Ex.. A, Nov. 13, 2013 Emergency Motion at Exhibit A) and suffering from at least post-

partum depression and substance dependence – abducted our four (4) week old child from

Washington, DC to Tacoma, WA. Ms. Comfort’s sole justification for her illegal actions are

fabricated allegations of domestic violence. These allegations were asserted well-after she

abducted the child and after I filed for custody and emergency return of the child on November

13, 2013 in the Superior Court for the District of Columbia (“DC Superior Court”).

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During the one (1) month period Ms. Comfort alleges she was abused (October 1, 2013 to

November 2, 2013), she never called the police, went to a doctor, availed herself to the courts in

any manner or even reached out to friends or family in distress. Her sole “proof” to corroborate

her allegations is a handful of PDF print-out photographs.1 If there was ever any semblance of

credibility to Ms. Comfort’s photographs, that fact that she has refused to comply for over a year

with a judicial subpoena and two (2) subsequent court orders directing production of the digital

copies of the photographs should be telling.2

A world-renowned forensic pathologist reviewing Ms. Comfort’s photographs has

analyzed the purported “injuries” in the PDF photographs as consistent with “acne,” “cold sores”

and “incidental scratches … [from] moving boxes and furniture.” The pathologist unequivocally

concluded that:

[I]t is my opinion that Ms. Comfort’s photographs … are inconsistent, and in many cases contradictory, with her various allegations of domestic abuse. Further, having examined Ms. Comfort’s photographs … it is my opinion that to a reasonable degree of scientific and medical certainty that the injuries depicted in the photographs are not consistent with an assault. Consequently, based on the information I have reviewed, I do not believe that Ms. Comfort was a victim of domestic violence.

When Ms. Comfort actually produces the digital copies of the photographs, this Court will be

faced with the unfortunate reality that it destroyed a litigant’s career and harmed the child based

falsified photographs as it is no mystery why Ms. Comfort refuses to produce them.

1 In many of the pictures it is not even clear whether they depict Ms. Comfort or someone else.

2 Justice Deborah Kaplan signed a Judicial Subpoena Duces Tecum on September 4, 2014 directing production of the digital copies of the photographs. After Ms. Comfort’s non-compliance, the Court has had to issue two orders dated February 27, 2015 and July 22, 2015 directing compliance, which Ms. Comfort has ignored. Ms. Comfort has changed her assertions as to when the photographs were taken numerous times in her various sworn statements. Additionally, Ms. Comfort has demonstrably falsified other evidence in the case raising questions as to the accuracy of the photographs.

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Moreover, the evidence in this case unquestionably refutes Ms. Comfort’s allegations.

Notably, just days after the last alleged incident of abuse, Ms. Comfort went to an OB/GYN for a

six (6) week check-up after giving birth to the child. After a head-to-toe evaluation, Ms.

Comfort’s OB/GYN did not note a single injury to Ms. Comfort, much less any injuries

consistent with domestic violence. (See Ex. 2, Nov. 21, 2013 C. Comfort Medical Records.)

Third-parties who visited Ms. Comfort to see the child made contemporaneous statements that

she “look[ed] great.” (See Ex. 3, Oct. 31, 2013 Text to A. Zappin.) Numerous photographs of

Ms. Comfort with the child reveal no injuries to her. (See e.g., Ex. 4, Oct. 8 and 13, 2013 Photos

of C. Comfort.) With an abundance of records, reports, communications and other evidence

from the time period, not a single person noted anything out of the ordinary. And, it has come to

light that Ms. Comfort’s allegations of domestic violence are not only false, but concocted and

plagiarized from a pro bono case she worked on at Weil Gotshal & Manges LLP. (See App. Ex.

J, Weil Gotshal Press Release.)

Putting the photographs aside, in order to perpetuate this unnatural and unlawful

parenting situation, Ms. Comfort has demonstrably falsified thousands of text messages

submitted to the Court and the forensic custody evaluator without any repercussions. She makes

endless allegations against me that are wholly irrelevant to the child. By way of example, Ms.

Comfort has gone so far as to complain to the forensic child custody evaluator that I cheated on

her with Taylor Swift. (See Forensic Evaluation Report of Dr. Alan Ravitz.)

All these smoke-screens aside, it is uncontested that I have had twenty-four (24) months

of excellent supervisor reports and visitation without any incident whatsoever. Likewise, there

has never been an allegation from Ms. Comfort that I pose any harm to the child. Yet, this

unlawful situation of supervised visitation has been imposed for two (2) years without a hearing

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or a fact-finding to the detriment of the child. And it continues to persist based on false

allegations by Ms. Comfort, a mother who has referred to her own child in written text messages

as “n*gger,” “niglet,” “black baby” and “retard.” (See Ex. 5, Text Messages from C. Comfort.)

Indicative of her unwillingness to cooperate in the best interests of the child, never once in the

past two (2) years has Ms. Comfort ever attempted to resolve any issue in this matter. It is

apparent that Ms. Comfort wants to inflict pain using the child, which has been echoed over-and-

over again by her father. (See Ex. 6, Sept. 23, 2014 Text Message from B. Comfort (“I promise

you that I’m going to make you feel pain ….”).)

This makes Justice Cooper’s unwarranted and unprecedented attack on me in his

September 18 Decision all the more unfortunate, particularly in light of the fact that it did

nothing but irreparably harm the child. Contrary to the Justice Cooper’s conclusory assertions

that I am litigating this case to somehow hurt Ms. Comfort, my sole motive has been – and will

continue to be – to cause this unlawfully imposed supervised access to cease and protect the

well-being of the child.

III. THE COURT’S APPARENT JUDICIAL MISCONDUCT IN THIS MATTER

A. Justice Cooper’s Unethical Conduct in Disseminating the September 18 Decision to the Media

Justice Cooper drafted and disseminated the September 18 Decision with the sole intent

to publicly destroy my reputation and get me fired from my job. This is evident based on the fact

that Justice Cooper was so anxious to publicize his September 18 Decision and maximize media

attention with news coverage of it that he went outside normal channels and sent it to a reporter,

Benjamin Bedell from the New York Law Journal (“NYLJ”) – not the NYLJ’s publication

department for judicial decisions. In fact, Justice Cooper sent an unsigned advance draft (in

media-friendly form) of the September 18 Decision to Mr. Bedell prior to the entry of the

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decision in the New York County Clerk’s Office.3 (See Ex. 7, Unsigned Sept. 18, 2015

Decision; Physical Exs. 1-2, Videos of the NYLJ Website.) Counsel for the NYLJ has

confirmed the same:

Just to clarify, what I said what that it was my understanding that the reporter [Mr. Bedell] had already told you that he received the decision from a clerk in Justice Cooper’s chambers.

(Ex. 9, Oct. 21, 2015 E-mail from C. Calman.) Putting aside the fact that Justice Cooper was

under no obligation to publish the September 18 Decision in any form, if there was any other

purpose for publication of the decision other than to inflict harm he could have published the

decision with the parties’ names redacted.

Furthermore, Justice Cooper’s contact with Mr. Bedell constitutes an impermissible ex

parte communication in violation of the New York Judicial Canons, 22 NYCRR 1003(B). The

Canons state that:

A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to the law. A judge shall not initiate, permit or consider ex parte communications, or consider other communication made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding.

(22 NYCRR 100.3(B)(6).) Pursuant to 22 NYCRR 100.3(B)(6)(a), the Court must immediately

provide a copy of the substance of its communication with Mr. Bedell.

B. Justice Matthew Cooper’s Unlawful Assignment to This Matter

Contrary to Justice Cooper’s assertion that the sanction was necessary to secure the

“integrity of the judicial process,” the true purpose of September 18 Decision was to retaliate

against me for the allegations I made against Justice Deborah Kaplan in the Court of Claims and

3 It is worth noting that the version of the September 18 Decision on record in the New York County Clerk’s Office was not stamped, scanned or entered until the afternoon of September 21, 2015, well after Mr. Bedell contacted me that morning. (See Ex 8, Stamped September 18 Decision.) Justice Cooper sent it to three (3) days before.

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purportedly causing her reassignment.4 Shortly after the filing of the Court of Claims action,

Justice Kaplan was “reassigned” as a “Coordinating Judge” doing a “comprehensive review” of

family violence cases. Furthermore, Justice Kaplan was, by all appearances, prevented from

hearing any other new matrimonial cases and stripped of a large portion of her caseload.

This matter was transferred to Justice Cooper on May 22, 2015 under highly irregular

circumstances. It was one of the first, if not the first, case transferred from Justice Kaplan’s

docket. (See Ex. 10, Spreadsheet of Justice Kaplan’s Reassigned Cases.) Moreover, out of over

120 cases transferred from Justice Kaplan’s docket, the above-captioned matter was the only

case transferred to Justice Cooper.5 (See id.)

Since unlawfully taking over this case on July 22, 2015, Justice Cooper has attacked me

personally and impugned my character and integrity relentlessly, prevented my access to

evidence and other materials necessary to prosecute the case such as subpoenaed medical records

and other documents returned to the Court directly and, most importantly, destroyed my

professional reputation in his unlawful and unprecedented September 18 Decision without me so

much as uttering a word in his courtroom. No reasonable person could conclude that Justice

Cooper’s assignment to this case was without a retaliatory purpose. For these reasons, the Court

must reassign this case to a new judge in accordance with 22 NYCRR 202.3.

4 Justice Kaplan orchestrated an unprovoked assault on me in her own courtroom and adjacent

hallway by her court officer on April 24, 2015. As a result of the attack, I suffered extensive injuries and was forced to file an action in the Court of Claims, which was served on the Attorney General on May 7, 2015.4 (See App. Ex. L, Apr. 28, 2015 Zappin v. State of New York Claim.) Notably, similar incidents have occurred in other matters pending before Justice Kaplan, e.g. Schorr v. Schorr and Braverman v. Braverman.

5 Neither this Court, nor the Office of Court Administration, have provided a meaningful explanation as to why or how this matter was chosen to be transferred to Justice Cooper rather than Justice Nervo, who was assigned nearly all of Justice Kaplan’s cases.

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IV. JUSTICE COOPER MUST RECUSE HIMSELF FROM THIS MATTER The whole point of a custody and access trial is to determine the best interests of the

child. It goes without saying that Justice Cooper, an individual who has acted in direct

contravention of the welfare of the child by publicizing a decision designed solely to destroy one

of the child’s parents, is unfit to make a determination as to the child’s best interests. In fact, the

September 18 Decision is proof positive that Justice Cooper has demonstrated an impairment of

judgment and capacity to make an impartial and meaningful child custody determination. 22

NYCRR 100.3(E)(1) provides that a “judge shall disqualify himself or herself in a proceeding in

which the judge’s impartiality might reasonably be questioned.” Here, the September 18

Decision on its face demands recusal.

As discussed above, Justice Cooper issued the September 18 Decision with the clear

intent to get me fired from my job and permanently impair my ability to practice law. In doing

so, Justice Cooper has harmed the child. By publishing and disseminating the September 18

Decision, Justice Cooper ruthlessly destroyed the earning power of one of the child’s parents

irreparably and negatively impacting the child. Moreover, Justice Cooper directly inserted the

child into the press and turned him into tabloid fodder. Embarrassing information about the child

and his parents is now cemented permanently on the omnipresent Internet for anyone to read

based on a simple Google search of the child’s name.

It is fundamental that “the trial judge has an affirmative constitutional duty to minimize

the effects of prejudicial pretrial publicity.” Westchester Rockland Newspapers, Inc. v. Legget,

48 N.Y.2d 430, 438 (1979) (emphasis added); see also Anonymous v. Anonymous, 191 Misc.2d

707 (Sup. Ct. N.Y. Cnty. 2002) (“[D]issemination of news or comments may tend to influence

the judge … from being impartial at trial.”); In re Halkin, 598 F.2d 176, 193 (D.C. Cir. 1979)

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(noting that “the threat of prejudicial publicity is entitled to some weight in a bench trial”). Here,

Justice Cooper did everything to unconstitutionally maximize pretrial publicity in this case

ranging from publishing an unredacted decision in a sealed matter to disseminating an unsigned

advanced draft of the September 18 Decision to a reporter from the NYLJ. And, he did so on the

eve of trial set to commence on November 12, 2015, no less.

Moreover, with his September 18 Decision, Justice Cooper has created in untenable and

prejudicial situation in which there is no possible way a fair trial can be had. Justice Cooper’s

recitation of the facts – which are often misstated, contain material omissions or outright

manipulated (e.g., the “postings” on harrietnewmancohen.com (see infra)) – is so one-sided that

no reasonable person could conclude that he can rule in my favor on any issue at trial. This is

only highlighted by Justice Cooper’s predetermined factual and credibility determinations

evident in the September 18 Decision without any semblance of a fact-finding hearing.6 Any

decision in my favor would cast substantial doubt on the September 18 Decision Justice Cooper

authored and his very public pronouncements against me.7 By attracting unnecessary media

attention to this case, Justice Cooper has now placed his interests and reputation materially at

odds with mine requiring his recusal from this case.

6 For instance, Justice Cooper has already demonstrated discourteous, unnecessarily insulting and intemperate behavior statements at me solely meant to embarrass and harm. He has called me a “fool,” “unfit to practice law” and “dishonest and reckless.” Justice Cooper even insinuated that I have been delinquent on child support, despite the fact that there is no child support order in this case, and goes so far as to imply that I am getting a “good deal” with supervised access, knowing full well the child is better served by having resources devoted to him. (See September 18 Decision at 13, fn 4.) More importantly, he has already come to the conclusion that I have inflicted harm on Ms. Comfort and the child without so much as entertaining a single piece of evidence.6 (See id. at 2.)

7 This is precisely why the Judicial Canons require judicial officers to recuse themselves where they have made public statements on a matter: “A judge shall disqualify himself or herself in a proceeding … where the judge … has made a public statement not in the judge’s adjudicative capacity that commits the judge with respect to an issue in the proceeding ….” 22 NYCRR 100.3(E)(1)(f). Here, Justice Cooper’s dissemination of the unsigned advance draft to the NYLJ in an effort to publicize the September 18 Decision no doubt constitutes a “public statement” requiring his recusal.

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Given that trial is set to commence on November 12, 2015, I request that Justice Cooper

recuse himself from this matter forthwith. I ask that the Chief Administrative Judge appoint a

judicial officer to preside over trial in this matter on the dates currently set, pursuant to 22

NYCRR 202.3(c)(4).

V. CONTRARY TO THE JUSTICE COOPER’S ASSERTION, THE RECORD IS CLEAR THAT PLAINTIFF HAS NOT “DELAYED” THIS MATTER In the September 18 Decision, Justice Cooper’s asserts that his theory of the case is that

that I have engaged in a “pattern of delay” of this proceeding to harm Ms. Comfort while

subjecting myself to supervised visitation. This premise simply makes no sense and is false. I

have been ordered to pay $5,000 to $6,500 (and as much as $15,000 at times) a month for less

than thirty (30) hours a month of supervised access with the child. There is absolutely no

incentive for me to delay resolution of this matter given the financial and emotional harm

inflicted on our son through supervised visitation.

Most importantly, as shown below, Justice Cooper’s ignores the clear record that much, if

not virtually all, of the delay in this matter is attributable to other parties, including Ms. Comfort

and AFC Harriet Cohen. For this reason, the September 18 Decision should be vacated pursuant

to CPLR 2221(a) and CPLR 5015(a)(2)-(3), or in the alternative the Court should issue an

amended decision striking the assertion.

A. Ms. Comfort Thwarted A Pendente Lite Hearing Calendared for March 5, 2014

As part of the November 20, 2013 Consent Order entered in DC Superior Court, Ms.

Comfort and I agreed on the record that the court would calendar and hold a pendente lite

hearing on custody and access on March 5, 2014. (See Ex. 11, Excerpt of Nov. 20, 2013 Tr. at

3:6-7 (“MS. O’ROURKE: -- and March the 5th on the books for custody ….”) Contrary to the

parties’ agreement, on January 2014, Ms. Comfort’s counsel, Matthew Andelman of Delaney

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McKinney LLP, made multiple attempts thwart the March 5, 2014 pendente lite hearing on

custody and access and delay a hearing for months.8 (See Ex. 12, Jan. 14, 2014 E-mail from M.

Andelman (“Continuance of the trial until early June … Keeping the March 5 hearing, but

changing into pendente lite hearing on issues of child support and attorneys’ fees …” (emphasis

added)).) When Ms. Comfort was not successful in thwarting the pendente lite hearing on

custody and access set for March 5, 2014, she moved the child yet again from Washington State

to New York State – instead of returning the child to Washington, DC – without my consent or

permission of the Court.9 Consequently, the March 5, 2014 hearing never took place and Judge

Epstein of the DC Superior Court was forced to transfer jurisdiction over the child from the

District of Columbia to New York State.

B. This Court Failed to Commence a Pendente Lite Hearing for Over Seven (7) Months in Violation of the Law Delaying Resolution of This Matter

After this matter was commenced on February 11, 2014, I made (through counsel) no less

than four (4) requests for an immediate hearing on custody and access pursuant to the parties’

November 20, 2013 agreement in DC Superior Court, the expiration of the November 20, 2013

Consent Order and the law of the State of New York. See Carlin v. Carlin, 52 A.D.3d 559, 560

8 Mr. Andelman began his attempts to thwart an immediate hearing after it was confirmed by the

Court on January 9, 2014 that a custody and access hearing would commence on March 5, 2014:

MR. ANDELMAN: I just wanted to check on the status of March 5th, that it’s scheduled for trial, for how many hours? There was an issue with Judge Di Toro handling your calendar, and we just wanted to double check once we got here.

THE COURT: Her notes say it was scheduled for half a day, which is what you had requested. I understand there is a chance it may go …. Longer than that. We’ll see.

(Ex. 13, Jan. 9, 2014 Tr. at 27:12-21.) Immediately after, Mr. Andelman began an e-mail and motion campaign to halt the hearing commencing on March 5, 2014 as cited above.

9 Communications recently produced by Ms. Comfort reveal that as early as November 14, 2013 she began plotting to “kick the case to New York.” (Ex. 14, Nov. 14, 2013 Google Hangout.)

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(2nd Dept. 2008) (“[I]t is an error as a matter of law to make an order respecting custody, even in

a pendente lite context, based on controverted allegations without having the benefit of a full

hearing”); 22 NYCRR 202.16(f)(3) (“The court … shall schedule a date for trial not later than

six months from the date of the [preliminary] conference.”) These requests took place on April

2, 2014; May 5, 2014; June 4, 2014 and July 7, 2014. Each time, the Court declined to go on the

record (thus preventing an appeal) and denied each of my requests for a hearing.

A hearing was not calendared by the Court until I was forced to file an emergency motion

on July 14, 2014. (See Mot. Seq. #1.) Despite the immediate need for a hearing, the Court did

not calendar dates for a hearing on the limited issue of my supervised access until two (2)

months later for September 15 and 16, 2014. (See Aug. 8, 2014 Order.) The parties’ were

subsequently reduced to a single hearing day on September 15, 2014 after AFC Harriet Cohen

requested an adjournment of the September 16, 2014 hearing date. (See Aug. 25, 2014 Tr. at

24:25 – 25:3 (“MS. COHEN: I also need to say, your Honor, I did mention this to your court

attorney, I am not available on September 16th. I have a prior engagement.”)

C. Ms. Comfort and Her Counsel, Robert Wallack, Delayed of the Pendente Lite Hearing on Supervised Access

On September 15, 2014, the Court held a single hearing day on the issue of my

supervised access with the child. The hearing was not completed that day. Despite the Court

describing the nature of the hearing as ”expedited,” the Court did not calendar the next hearing

day until well over a month later to October 20, 2014. (See Feb. 27, 2015 Order at 10 (“At the

end of the proceedings [on September 15, 2014] … the court directed that the hearing continue

on October 20, 2014.”)

Although the hearing was not re-commenced on October 20, 2014, the Court did

commence a hearing on October 27, 2014 (notably omitted from Justice Cooper’s September 18

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Decision). The hearing was thwarted and the Court was not able to hear any argument or

evidence as to an appropriate access schedule because Ms. Comfort and her counsel, Robert

Wallack, failed to submit court-ordered papers due that day:

THE COURT: But, one of the things you asked me to do is to set an access schedule, and had I had the return from Mr. Wallack today I would have been prepared to hear you on that and do it today. I don’t have it.

(Oct. 27, 2014 Tr. at 16:4-8.) The Court subsequently sua sponte issued a visitation schedule on

November 6, 2014 – without a hearing or even argument from the parties – that was substantially

at odds with prior access schedules and only provided for approximately thirty (30) hours per

month of supervised access with the child. (See Ex. 15, Nov. 6, 2014 Order.)

D. Ms. Comfort and AFC Harriet Cohen’s Requested the Adjournment of the March and April 2015 Trial Dates

In the September 18 Decision, the Justice Cooper states:

By an order dated February 13, 2015, she [Justice Kaplan] directed that the trial resume on March 6, 2015. However, the trial did not go forward as scheduled and was adjourned to May, apparently at plaintiff’s request.

(September 18 Decision at 7-8 (emphasis added).) Justice Cooper’s factual assertion is

materially inaccurate and contrary to the record.

On February 27, 2015, the Court ordered that a trial on “all issues related to custody of

the child” commence on March 6, 2015, i.e. directing trial on a mere four (4) business days’

notice.10 However, the trial was adjourned at the request of Ms. Comfort, her counsel and AFC

Harriet Cohen. This was noted in the Court’s Order of March 5, 2015:

10 Justice Kaplan sua sponte stayed the matter after I filed an application to disqualify AFC

Harriet Cohen on October 28, 2014 for apparent attorney misconduct. (See Dec. 18, 2014 Tr. at 5:3-5, 11:3-6.) Justice Kaplan herself characterized the allegations of attorney misconduct against AFC Harriet Cohen as “quite serious.” (See Jan. 9, 2015 Tr. at 30:8.) The application was withdrawn on January 13, 2015 in order to expedite the hearing on supervised access.

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In an Order, dated February 13, 2015, the court directed that an evidentiary hearing take place in these matters on March 5, 6, 9, 10, 12, and March 13, 2015 (Order, dated February 13, 2015). On February 18, 2015, the wife filed an affidavit stating that she had a business meeting with a client on March 5, 2015. (Def. 02/18/15 Aff. ¶ 2). The wife’s counsel filed an affirmation of actual engagement stating that he was actually engaged on March 10 and 12, 2015 … In a Decision and Order dated February 27, 2015, the court vacated the March 5, 10 and 12, 2015 trial dates ….

(Mar. 5, 2015 Order at 1 (emphasis added).) The Court had re-calendared dates for April 7, 9

and 13, 2015 for the custody and access trial. However, AFC Harriet Cohen requested an

adjournment based on the fact she was going to be on a European vacation during those dates:

MS. COHEN: With respect to the schedule, I would like to state that I will be out of the country on the April dates … I already have my tickets, my international tickets, your Honor … I will be out of the country from April 3rd until April 17th. So any dates during this two week period, I would respectfully request be deferred

(Mar. 3, 2015 Tr. at 6:9-17.) The Court granted AFC Harriet Cohen’s request and vacated the

April trial dates.11 (See Mar. 5, 2015 Order at 3.)

E. Mintz Levin’s Request for Adjournment of the May 2015 Trial Dates

Justice Cooper further asserts that I “delayed” the May 2015 trial dates by requesting an

adjournment. Justice Cooper, however, omits material facts from its September 18 Decision.

The adjournment was requested by my former employer, Mintz Levin, in order to preserve my

job (which was in the best interests of the child). Moreover, the long seven (7) month

adjournment from May 2015 to November 2015 was at the request of AFC Harriet Cohen.

On March 23, 2015, the Court set trial dates for May and June 2015.12 When I notified

my former employer Mintz Levin of the new trial dates and my potential absence, they

11 In the Court’s March 5, 2015 Order, it noted that the adjournment would “in the interest of

justice … permit [me] time to retain private counsel.” (Mar. 5, 2015 Order at 3.) I immediately retained counsel, Stein and Ott, LLP.

12 The Court’s March 23, 2015 Order also set trial dates for April 24 and 27, 2015. However, the Court never served the order on the parties. It was only discovered by my counsel in mid-April when she

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immediately requested that I ask that the trial dates be adjourned due to a statutory deadline in

July 2015 for a matter I was working on at the firm. (Ex. 16, Apr. 29, 2015 Aff. of Matthew

Hurley.) On April 29, 2015, my counsel wrote to the Court:

Following the Court conference [on April 24, 2015], I personally spoke with the IP Section Manager and the head of the New York IP practice at Mintz Levin yesterday, April 29 [sic]. They reiterated to me that Mr. Zappin is absolutely indispensable on a confidential project for the firm’s client(s) that has a statutory deadline of July 15, 2015 … Both the IP Section Manager and the head of the New York IP practice expressed great concern about the trial dates … Subsequent to the conversation with the Mintz Levin partners, Mr. Zappin learned that … absent an adjournment in the very short term, his employment is now at risk.

(Ex. 17, Apr. 29, 2015 E-mail from L. Ott (emphasis added).) At the Court’s request, the IP

Section Manager at Mintz Levin, Matthew Hurley, submitted an affidavit to the Court requesting

a short adjournment until after July 15, 2015 that stated:

Mr. Zappin is currently staff on matters at Mintz Levin that conflict with [the May and June] dates and on behalf of Mintz Levin I respectfully request that the dates be adjourned until after July 15, 2015. *** Mr. Zappin has been one of the lead attorneys on a large litigation matter that is very important to the firm and to one of our largest clients. I understand that a significant portion of the case has a statutory deadline … that requires multiple inter partes review petitions to be filed on or before July 15, 2015 … Mr. Zappin’s schedule at Mintz Levin on the matter will necessarily conflict with the trial dates currently set in this matter. *** It would be extremely difficult and detrimental to our client’s interests to replace Mr. Zappin on this matter given the looming, non-extendable statutory deadlines and the amount of work that remains to be done. Accordingly, Mr. Zappin’s absence for extended periods of time for trial preparation and trial on the dates set by the Court in this matter will severely prejudice the firm’s client and the firm.

was reviewing the forensic report in the courtroom. As a result of the Court’s failure to serve the order, the Court vacated the trial dates and held a status conference on April 24, 2015.

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(Ex. 16, Apr. 29, 2015 Aff. of Matthew Hurley.) The Court adjourned trial noting Mr. Hurley’s

affidavit as a basis. (See May 6, 2015 Order at 1 (“An affidavit from Matthew C. Hurley, the

Section Manager for the Intellectual Property Section at Mintz Levin, confirms that the father is

‘one of the lead attorneys on a large litigation matter’ who ‘has indispensable knowledge

regarding the matter that cannot be replaced on such short notice.’”).

However, the Court set new trial dates over seven (7) months away to November 2015.

This was due to a request from AFC Harriet Cohen. In an e-mail to the Court dated May 1,

2015, Ms. Cohen stated that she was “actually engaged during August and September in another

matrimonial trial in Nassau County Supreme Court” causing further unnecessary delay in this

matter. (Ex. 18, May 1, 2015 E-mail from H. Cohen.)

VI. THE SEPTEMBR 18 DECISION CONTAINS NUMEROUS FACTUAL INACCURACIES REQUIRING VACATUR The September 18 Decision contains numerous inaccuracies, misstatements of fact and

material omissions. These errors are evident based on the record in this case and must have been

known to the Justice Cooper. For instance, the Justice Cooper states that:

Plaintiff’s difficulties as an attorney pro se began in the Superior Court of the District of Columbia, where the parties entered into a “Consent Order” on November 20, 2013. By way of the Consent Order, plaintiff agreed to have no contact with defendant and to have supervised visitation as a condition for access to his son.

(September 18 Decision at 4 (emphasis added).) However, a simple review of the November 20,

2013 Consent Order entered in DC Superior Court reveals that I was represented by counsel,

Feldesman Tucker Leifer Fidell LLP, as indicated Katherine O’Rouke’s signature on the Consent

17

Order.13 (See App. Ex. B, Nov. 20, 2013 Consent Order.) Additionally, a simple review of the

eCourts docket in this action reveals that I have been represented by counsel for the majority of

the litigation. (See App. Ex D, eCourts Docket.) In fact, the day prior to the issuance of the

September 18 Decision, the Court updated the eCourts docket to reflect that David Schorr was

my counsel of record having entered an appearance in July 2015. (See App. Ex. E, eCourts E-

mail Notification.)

Further, in one of the more striking misstatements of fact, Justice Cooper asserts that

certain statements were published on a website about AFC Harriet Cohen:

The purpose of the website was chillingly clear from the various postings made under the name of plaintiff’s father’s name. Illustrative of these postings, and indicative of the whole nature of the enterprise, are the following messages:

Harriet. You’re a very sick and greedy woman. I pray for you and hope you seek help. I intend to keep the public apprised of your misconduct and disturbing behavior. Quickly climbing up the Google rankings. Stay tuned for updates.

(September 18 Decision at 14 (emphasis added).) However, as AFC Harriet Cohen admits in her

September 2, 2015 Opposition Papers to Mot. Seq. 19, the above statements quoted by the Court

in the September 18 Decision were not “postings” on a website, but were in fact private e-mails

from my father, Jeffrey Zappin, to AFC Harriet Cohen:

13 Notably, Justice Cooper fails to mention that the November 20, 2013 Consent Order was a

product of Ms. Comfort springing her falsified allegations of domestic violence one (1) hour prior to an emergency pendente lite hearing on custody scheduled that day. I was forced to concede to Ms. Comfort’s demands in the Consent Order or face Ms. Comfort returning the child to Washington State and creating a multi-jurisdictional dispute with the possibility of no access to the child for some time.

18

(App. Ex. Q, Excerpt of Sept. 2, 2015 Cohen Aff. at ¶ 4 (Mot. Seq. 19).) These alleged

statements never appeared on the website. Indeed, the Court’s manipulation of the alleged

second quote that clearly shows the purported message was an e-mail demonstrates a deliberate

intent to misstate and sensationalize the record in this case.

As the attached Appendix demonstrates, the September 18 Decision is rife with these

errors. It bears reminding that all of the Court’s factual recitations and conclusions in the

September 18 Decision were made without a hearing, fact-finding or any opportunity to be

heard. Here, the improper factual findings, inaccurate recitation of facts and omissions in the

September 18 Decision are so pervasive and prejudicial that the decision must be vacated

pursuant to CPLR 2221(a) and CPLR 5015(a)(2)-(3). Alternatively, the Court must enter an

amended order correcting the errors prevalent in the September 18 Decision.

VII. THE SEPTEMBER 18 DECISION IS AN IMPROPER DE FACTO DISCIPLINARY CENSURE REQUIRING ITS VACATUR AND AN ORDER PLACING THE DECISION UNDER SEAL

Justice Cooper’s September 18 Decision was an improper de facto disciplinary censure

circulated to the media that substantially injured my livelihood and professional reputation. It

was, moreover, issued in direct contravention of the New York Judiciary Act (the “Judiciary

19

Act”). Section 90 of the Judiciary Act gives the Appellate Division exclusive jurisdiction to

investigate and discipline attorneys admitted to practice in New York State. Judiciary Act §

90(2). Furthermore, the Judiciary Act requires that attorney disciplinary files remain private and

confidential until, if and when, the Appellate Division determines that public discipline is

warranted. Judiciary Act § 90(10). This is due to the fact that attorneys are entitled to due

process under the law. See Spevack v. Klein, 385 U.S. 511 (1967). Accordingly, New York has

enacted protections for such proceedings, such as subpoena power, notice and opportunity to be

heard, and formal hearings. See generally 22 NYCRR 603 & 605.

Here, Justice Cooper usurped the power of the Appellate Division. First and foremost,

the Court made the conclusory factual conclusion “call[ing] into question my fitness to practice

law.” (September 18 Decision at 3.) The Court goes on to make factual findings that I violated

the Rules of Professional Conduct. (See September 18 Decision at 10.) The Court’s statements

and factual conclusions are a clear abuse of discretion. Never once did the Court hold a fact-

finding hearing or provide any opportunity to respond to its factual recitations in the September

18 Decision. And, the Court’s factual recitations are suspect at best as shown above and in the

attached Appendix.

The issue of a de facto disciplinary censure has been addressed by other courts. In

Adams v. Ford Motor Co., 653 F.3d 299 (3rd Cir. 2011), that court addressed the same issue of

whether a Magistrate Judge’s order finding an attorney had violated the Rules of Professional

Conduct was an impermissible disciplinary sanction requiring that the sanction order be vacated.

The Third Circuit found that the Magistrate Judge’s finding was improper and amounted to a

disciplinary sanction undermining the attorney’s professional reputation and standing without a

20

hearing. See Ford Motor Co., 653 F.3d at 305. In vacating the Magistrate Judge’s decision, it

noted:

It is clear that the order directly undermines Colianni’s professional reputation and standing in the community. That is far from an insignificant affront. A lawyer’s reputation is one of his/her most important professional assets … It is all but inevitable that the magistrate judge’s order has adversely impacted Coliani’s reputation, particularly in a small legal community such as the Virgin Islands. Moreover, the reputational harm that Colianni has suffered is magnified by the judge’s refusal to place the order under seal, thus making the order accessible to anyone with access to an omnipresent internet connection and even minimal familiarity with using an internet search engine.

See id. (internal quotation marks and citations omitted).

There is no question that the Court’s September 18 Decision has imposed significant

harm to my professional reputation as demonstrated by the loss of my employment, the apparent

target of Justice Cooper’s September 18 Decision. See United States v. Talao, 222 F.3d 1133,

1138 (9th Cir. 2000) (noting that a finding of misconduct carries the same consequences as a

reprimand, as it “is likely to stigmatize the attorney among her colleagues and potentially could

have a serious detrimental effect on her career”). The harmful impact was exponentially

magnified by the Court’s decision to publish the September 18 Decision unredacted and to

disseminate it to the media where it will remain on the “omnipresent internet” for discovery by

anyone with “even minimal familiarity with using an internet search engine.” See Ford Motor

Co., 653 F.3d at 305. It is all the more ironic in that Justice Cooper’s purpose for publicly

destroying my career was his apparent taking umbrage at my filing a private complaint against

another professional. (September 18 Decision at 18 (“Here, plaintiff has gone beyond the pale

by cynically and maliciously interfering with a physician’s most valuable asset: his license to

practice medicine.”).)

21

Given the Court’s clear violation of the Judiciary Act, its failure to provide notice and an

opportunity to be heard and its evident intent to harm my professional reputation, the only just

and equitable remedy is that the September 18 Decision be vacated. Further, the Court must

place the September 18 Decision under seal and issue an injunction prohibiting its publication.

Lastly, if the Court wishes to push forward with its allegations of misconduct, it must hold a fact-

finding hearing so that I may present evidence and take testimony in my defense.

VIII. THE SANCTION MUST BE VACATED AS SUBSTANTIVELY AND PROCEDURALLY IMPROPER

Pursuant to CPLR 2221 and CPLR 5015(a), I respectfully request that the Court

reconsider and vacate the sanction imposed in the September 18 Decision. The imposition of

sanctions was both substantively and procedurally improper as shown below.

A. The Court’s Factual Conclusions for the Sanction are Erroneous

The Court’s factual basis is clearly erroneous and necessitates vacatur of the sanction

imposed in the September 18 Decision. There was nothing “frivolous” or improper concerning

the filing of the complaint against Dr. Aaron Metrikin with the OPMC. This is evidenced by the

fact that the Court neglects to mention with any specificity the grounds for the complaint. (See

September 18 Decision at 16.) The grounds were:

• Dr. Metrikin was practicing outside the area of his competence. As his curriculum vitae demonstrates, he has no experience in child custody case. (Ex. 19, Dr. Aaron Metrikin’s CV.) Further, his LinkedIn reveals that he is an “addiction specialist,” which is not an issue in this case.14 (Ex. 20, LinkedIn Printout.) Dr. Metrikin’s practicing outside of his area of competence was a clear ethical violation. (See Ex. 22, American Psychiatric Association, Principles of Medical Ethics (Section 2(3) states that a psychiatrist who “practices outside his or her area of professional competence should be considered unethical”.)

14 Dr. Metrikin removed from his LinkedIn profile his self-description as an “addiction specialist”

after it was raised with the Court in April 2014. (See Ex. 21, LinkedIn Printout.)

22

• Dr. Metrikin charged an unconscionable and unethical rate of $700, which

is well-outside the customary rates of $300 - $500 per hour for custody evaluators. The Court never mentions the actual figure of Dr. Metrikin’s rate anywhere in the September 18 Decision. (See id. (Section 1(1) stating that a psychiatrist “shall not gratify his or her own needs by exploiting the patient”)

• Dr. Metrikin submitted a fraudulent bill in May 2015 claiming “lost time”

for a day in which we were not on trial. (See App. Ex. U, August 4, 2015 OPMC Complaint.)

All of these deeply troubling issues were raised with the Court in great detail in

opposition to AFC Harriet Cohen’s fee application filed on March 3, 2015. The Court failed to

address a single one of these issues as evidenced by its July 22, 2015 decision. (See July 22,

2015 Order (Mot. Seq. #12).) Given the unethical and fraudulent practices of Dr. Metrikin and

AFC Harriet Cohen, my only recourse was with the OPMC given the tacit acceptance of the

conduct by this Court through its silence. And, contrary to the Court’s assertion, the only reason

for the dismissal of the complaint was the OPMC’s lack of “authority and jurisdiction” as to

billing issues and a concurrent litigation dispute, not because of the merits of the complaint. (See

September 18 Decision at 20; App. Ex. V, Aug. 27, 2015 OPMC Dismissal Letter.)

It bears mentioning that AFC Harriet Cohen intended to call Dr. Metrikin as a witness at

trial. (See Ex. 23, Mar. 3, 2015 AFC Witness List.) Since the publication of the September 18

Decision, however, AFC Harriet Cohen has removed Dr. Metrikin from her witness list. (See

Ex. 24, Oct. 2, 2015 AFC Witness List.) It is quite evident that AFC Harriet Cohen does not

even have faith in her own expert at this point.

B. Plaintiff Was Entitled to a Hearing on “Bad Faith” before Imposition of Sanctions

Section 230(11)(b) of the New York Public Health Law grants qualified immunity to

anyone filing a complaint with the OPMC. See Kirell v. Vytra Health Plans Long Is., Inc., 29

23

A.D. 3d 638, 639 (2nd Dept. 2006). Specifically, it provides that: “Any person … who reports or

provides information to the board in good faith, and without malice shall not be subject to an

action for civil damages or other relief as a result of such report.” In order to impose a sanction

or any other civil relief, the Court was required to make a specific finding of “bad faith.” In

order to make a finding of “bad faith,” the Court was required to hold a full hearing on the issue,

which it failed to do in error. See Rosentahl v. Gilroy, 208 A.D.2d 748, 749 (2nd Dept. 1994)

(“The courts of this state have continually held that when there exists a triable issue of fact with

regard to bad faith, a full hearing must be held.”) The sanction must therefore be vacated and a

full hearing must be held to the extent the sanction is pursued.

C. The Court Improperly Applied the Burden to Overcome Qualified Immunity

The Court improperly shifted the burden to me that I disprove “bad faith” in filing the

complaint with the OPMC. It is the non-movant “who has the burden initially of demonstrating,

prima facie, its right to judgment on the basis of qualified immunity.” See Appelbaum v. Cnty. of

Sullivan, 222 A.D.3d 987, 988 (3rd Dept. 1995). There is no question here that I established that

I was entitled to qualified immunity in filing the complaint with the OPMC under Section

230(11)(b) of the New York Public Health Law. (See September 18 Decision at 19-20.)

“[A]fter such showing has been made does the burden shift to [the movant] to present

evidence supporting a finding that immunity should be denied ….” See Appelbaum, 222 A.D. 3d

at 988. Here, the Court improperly put the onus on me to disprove bad faith: “Plaintiff,

however, offers absolutely nothing to indicate that his actions taken toward the AFC’s expert

were done either in good faith or without merit.” (September 18 Decision at 20.) The Court fails

cite any evidence of bad faith presented by AFC Harriet Cohen or that qualified immunity should

be overcome. See Red Cap Valet v. Hotel Nikko, 273 A.D.2d 289, 290 (2nd Dept. 2000)

24

(“[P]laintiff failed to allege any facts from which malice could be inferred and [his] conclusory

allegations of malice were insufficient to overcome the privilege.”) Because the Court

inappropriately shifted and applied the burden of qualified immunity, the sanction must be

vacated.

D. The Court Failed to Give Plaintiff an Opportunity to Be Heard on the Sanction

22 NYCRR 130-1.1(d) provides that: “An award of costs or the imposition of sanctions

may be made … after a reasonable opportunity to be heard. The form of the hearing shall

depend upon the nature of the conduct and the circumstances of the case.” (emphasis added.)

Here, the Court failed to provide any reasonable notice or opportunity to be heard in opposing

the imposition of sanctions. The Court admits that the “AFC’s request for sanctions was initially

made in her reply affirmation ….”15 (September 18 Decision at 19.) However, “[i]t is well

settled that a movant cannot introduce new grounds for relief in its reply papers.” Dowell v. City

of New York, 2014 N.Y.Misc. LEXIS 2104, at *7 (Sup. Ct. N.Y. Cnty. May 2, 2014).

The Court claims that I had “ample opportunity to respond, and thus be heard on the issue

of sanctions, in [my] sur-reply.” (September 18 Decision at 19.) To the contrary, the case law is

clear that I was entitled to ignore AFC Harriet Cohen’s sanctions request raised for the first time

in her reply affirmation. Moreover, the intent of my sur-reply was to notify the Court that the

OPMC took no action on the complaint against Dr. Metrikin due to a lack of jurisdiction.

Requiring that I oppose a sanctions request raised and buried in a reply is improper.

Additionally, it is worth noting that the Court failed to even hold oral argument on AFC

Harriet Cohen’s application for sanctions (Mot. Seq. #21). (See Ex. 25, Aug. 28, 2015 E-mail

15 AFC Harriet Cohen’s request for sanctions was buried at the end of her reply papers and

provided virtually no argument as to why sanctions should be imposed.

25

from T. Corbo (“No oral argument is required and accordingly, both appearances are hereby

cancelled” (emphasis in original).)) Thus, I had no indication that the Court was even inclined to

entertain AFC Harriet Cohen’s improperly raised request. Given the gravity and implications of

the September 18 Decision, I was at the very least entitled to oral argument, if not a full hearing,

on the issue of sanctions. The sanction must therefore be vacated and a hearing held.

E. AFC Harriet Cohen’s Reply Papers Requesting Sanctions Were Untimely Served

The Court adjourned the return date of Mot. Seq. #21 to September 9, 2015. (See Ex. 25,

Aug. 28, 2015 E-mail from T. Corbo.) According to the Part Rules, replies papers must be

“served and filed with the Part 51 clerk at least one (1) day prior to the return date or, where an

adjournment has been granted, at least (2) day [sic] prior to the adjourn date, unless otherwise

directed by the court.” (See Part 51 Rules.) The Court did not alter the briefing schedule set out

in its Part Rules. (See Ex. 25, Aug. 28, 2015 E-mail from T. Corbo.)

AFC Harriet Cohen’s reply papers were untimely filed and were never properly served.

The reply papers were e-mailed to the Court on September 9, 2015, some two (2) days after their

due date.16 (See Ex. 26, Sept. 9, 2015 E-mail from H. Cohen.) Additionally, they were never

properly served on me as required by CPLR 2103 as e-mail is not a valid form of service. The

Court therefore should have never considered, let alone granted relief, on AFC Harriet Cohen’s

untimely filed and improperly reply papers.

F. AFC Harriet Cohen Had No Standing to File Mot. Seq. 21 or Request Sanctions

The test for determining standing to seek relief is well settled. A movant “has standing to

maintain an action upon alleging an injury in fact within his or her zone of interest.” Silver v.

16 I have repeatedly raised the issue of AFC Harriet Cohen’s untimely filing of papers with the

Court as it has occurred in nearly every motion sequence. The Court has failed to take any action against AFC Harriet Cohen. Moreover, I have repeatedly told her that I do not accept service by e-mail.

26

Pataki, 96 N.Y.2d 532, 539 (2001). “The existence of an injury in fact – an actual legal stake in

the matter being adjudicated – ensures that the party seeking review has some concrete interest

in prosecuting the action which casts the dispute in a form traditionally capable of judicial

resolution.” Id. (internal quotation marks omitted).

Here, AFC Harriet Cohen had no standing to bring Mot. Seq. 21 or request sanctions

under 22 NYCRR 130-1.1. The Court found in its September 18 Decision that no attorney-client

relationship existed between AFC Harriet Cohen and Dr. Metrikin:

[T]here is no evidence that the expert was even aware of the relief being sought or any affirmative action on his part demonstrating his intent to have the AFC appear on his behalf. Accordingly, an attorney-client relationship was never created.

(September 18 Decision.)17 Because AFC Harriet Cohen did not allege any injury suffered

herself in Mot. Seq. #21, she had no standing to seeking monetary relief or sanctions on behalf of

Dr. Metrikin without an attorney-client relationship.

G. The Court Should Not Sanction A Litigant For Conduct Outside the Litigation

The clear intent of 22 NYCRR 130-1.1 is to punish for conduct undertaken within a

litigation that is frivolous. Apart and aside from the fact that I took no frivolous action, the

OPMC complaint against Dr. Metrikin was a separate matter outside the scope of this litigation.

It was therefore improper for the Court to sanction me for an action over which it had no

jurisdiction.

H. The Court Failed to Make a Finding as to Why $10,000.00 Was Appropriate

22 NYCRR 130-1.2 states that the Court may impose sanctions “only upon a written

decision setting forth … the reasons why the court found the amount awarded or imposed to be

17 It is telling that the Court found that AFC Harriet Cohen had sought relief on behalf of an

individual that she had no attorney-client relationship with, yet failed to reprimand her for unauthorized practice of law in violation of the Rules of Professional Conduct.

EXHIBIT 1

10/27/15, 1:42 PMGmail - Motion for Interim Relief

Page 1 of 1https://mail.google.com/mail/u/0/?ui=2&ik=0f70d525f4&view=pt&search=sent&msg=150a7e9436726baf&siml=150a7e9436726baf

Anthony Zappin <anthony.zappin@gmail.com>

Motion for Interim Relief

Anthony Zappin <anthony.zappin@gmail.com> Tue, Oct 27, 2015 at 2:08 AMTo: Robert Wallack <rwallack@wallackfirm.com>, "HCohen@crsslaw.com" <HCohen@crsslaw.com>, David Schorr<deschorr@schorr-associates.com>

Due to unforeseen circumstances, the motion for interim relief and disqualification of Justice Cooper will be presentedWednesday October 28 at 2:30 p.m.

Anthony

EXHIBIT 2

EXHIBIT 3

EXHIBIT 4

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EXHIBIT 5

EXHIBIT 6

EXHIBIT 7

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK: PART 51-----------------------------------------------------------------------XANTHONY ZAPPIN, Index No. 301568/14

Mot. Seq. Nos. 19 and 21 Plaintiff,

-against- DECISION AND ORDER

CLAIRE COMFORT,

Defendant.----------------------------------------------------------------------XFor the Plaintiff For the Defendant Attorney for the Child Anthony Zappin, Esq, Robert Wallack, Esq., Harriet N. Cohen, Esq.Self-represented The Wallack Firm, P.C. Cohen Rabin Stine Schumann, LLP194 W. 10th Street, #D1 777 Third Avenue, 21st Fl. 11 Times Square, 10th Fl.New York, NY 10014 New York, NY 10016 New York, NY 10036

As required by CPLR 2219 (a), the following is a recitation of the papers considered in the review of Motion Sequence 19: (1) Attorney for the Child’s Order to Show Cause, Affirmation, Exhibits; (2) Plaintiff’s Affidavit in Opposition, Exhibits; (3) Attorney for the Child’s Reply Affirmation, Exhibits; (4) Plaintiff’s Sur-Reply Affidavit, Exhibits.

As required by CPLR 2219 (a), the following is a recitation of the papers considered in the review of Motion Sequence 21: (1) Attorney for the Child’s Order to Show Cause, Affirmation, Exhibits; (2) Plaintiff’s Notice of Cross-Motion, Affidavit, Exhibits; (3) Plaintiff’s Affidavit in Opposition and Exhibits; (4) Plaintiff’s Supplemental Affidavit; (5) Attorney for the Child’s Reply Affirmation; (6) Plaintiff’s Sur-Reply Affidavit, Exhibits.______________________________________________________________________________Hon. Matthew F. Cooper, J.S.C.

More often than not, it is a problem when lawyers choose to represent themselves in their

own lawsuits. As no less an authority than the United States Supreme Court has written, “[t]he

adage that ‘a lawyer who represents himself has a fool for a client’ is the product of years of

experience by seasoned litigators” (Kay v Ehrler, 499 US 432, 437 [1991]). In the words of the

High Court, an attorney appearing pro se is “deprived of the judgment of an independent third

party in framing the theory of the case, evaluating alternative methods of presenting the

evidence, cross-examining hostile witnesses, formulating legal arguments, and making sure that

reason, rather than emotion, dictates the proper tactical response to unforseen developments in

the court room” (id.).

Despite the Supreme Court’s admonition, it is all too common for spouses who are

lawyers to represent themselves in divorce proceedings. Because matrimonial practice is a

specialized area of the law, with its own rules and ways, most lawyers who attempt to proceed

pro se find themselves ill-equipped to competently handle the procedural and/or substantive

aspects of their divorce cases on their own. And because a contested divorce is almost

guaranteed to be emotionally charged, a self-represented lawyer may be hard-pressed to summon

the level of rational thought and independent judgment that is required of a capable litigator.

This divorce case, unfortunately, presents a situation where an attorney has used his pro

se status to inflict harm on his wife, their child and the court, and in so doing has caused

significant harm to himself. Plaintiff, Anthony Zappin, an attorney admitted to practice in the

courts of the State of New York, is a lawyer at a major law firm where he specializes in patent

infringement litigation. He has chosen to be his own attorney in an action where his access to

the parties’ infant son is a central issue and where there are allegations of domestic violence.1

Rather than act in a constructive manner, plaintiff has done everything in his power to undermine

the legal process and use his law license as a tool to threaten, bully, and intimidate. As will be

discussed below in further detail, his ill-advised behavior seriously calls into question his fitness

to practice law. It is also, according to defendant and the attorney for the child, indicative of a

1Article 18B of the New York County law provides for the assignment of counsel in cases where child custody and/or access is at issue and a party is financially unable to retain an attorney. Assigned counsel must be from what is known as the “18B” panel and paid a statutory hourly rate from state and county funds. Additionally in New York County, the Matrimonial Pro Bono Project run by the New York Women’s Bar Association can often provide a volunteer lawyer to represent a party in a divorce case where there is financial hardship and custody and/or access is not at issue. Plaintiff, as an attorney making a base salary of $230,000 a year, is not eligible for assigned or volunteer counsel.

personality that makes plaintiff incapable of properly parenting the parties’ child.

As a direct result of plaintiff’s conduct in this case, the attorney for the child, Harriet N.

Cohen, Esq., (the “AFC”) has been forced to bring the two motions that are now before the court.

The first motion (Motion Sequence 19) is to quash a subpoena served on her by plaintiff. The

second motion (Motion Sequence 21) is for permission to communicate with the New York State

Office of Professional Medical Conduct (the “OPMC”) and to release court documents in

connection with a disciplinary complaint plaintiff filed with the OPMC against the psychiatrist

she retained as an expert witness, as well as to require plaintiff to bear responsibility for the legal

fees her expert incurs and financial losses suffered with regard to plaintiff’s complaint. The AFC

also asks the court to impose financial sanctions against plaintiff pursuant to 22 NYCRR 130-1.1

as a result of his actions with respect to her expert and his overall misconduct throughout the

pendency of the divorce action.

Plaintiff has cross-moved in Motion Sequence 21 to have Ms. Cohen disqualified as the

AFC, relief he has sought a number of times prior. In the event she is not disqualified, he seeks

to be able to call Ms. Cohen as a witness at trial and be permitted to cross-examine her.

Additionally, plaintiff cross-moves to renew his application for leave to take the child to a

hospital for a developmental assessment. Lastly, plaintiff seeks to vacate this court’s July 22,

2015 order that granted the AFC a money judgment against him for fees that are due her and he

has refused to pay.

Background

The parties were married in 2013 and have a child together, a boy, who is soon to be two-

years-old. Since their son’s birth, the parties have engaged themselves in what has seemingly

been perpetual litigation, initially in the courts of the District of Columbia and now in New York.

Throughout most of the litigation, plaintiff has represented himself, while defendant, Claire

Comfort, who is also a patent attorney at a major law firm, has retained counsel.

Plaintiff’s difficulties as an attorney pro se began in the Superior Court of the District of

Columbia, where the parties entered into a “Consent Order” on November 20, 2013. By way of

the Consent Order, plaintiff agreed to have no contact with defendant and to have supervised

visitation as a condition for access to his son. In a decision dated April 7, 2014, Superior Court

Judge Anthony Epstein found that a motion brought by plaintiff was “replete with intemperate

and uncivil language about which the Court previously cautioned him.” He also stated that

“much of the matter in [plaintiff’s] motion is redundant, immaterial, impertinent, or scandalous.”

In the decision, Judge Epstein went on to note that plaintiff “had discharged two sets of attorneys

in this case – attorneys who have represented him more civilly and, from this Court’s

perspective, more effectively than he has represented himself.”

Not only was plaintiff unreceptive to Judge Epstein’s suggestion that he retain counsel,

but he was aggressively hostile to the judge’s criticism of his conduct as a self-represented

attorney. Judge Epstein, in a decision dated May 28, 2014 in which he denied plaintiff’s motion

to reconsider his prior ruling, referred to an incident where he believed plaintiff had engaged in

inappropriate conduct towards him. He described the incident as follows:

On the front of the copy of the reconsideration motion that Mr. Zappin provided to chambers, a handwritten note is attached that states, “You’re pathetic! (Judicial Complaint forthcoming).” The note is unsigned, but Mr. Zappin, who now represents himself in this case and provided the document, appears to be the person who wrote and attached the note.

Plaintiff’s improper behavior towards the court did not cease once the case was no longer

before Judge Epstein. On February 11, 2014, after both parties had moved to New York, plaintiff

commenced this action for divorce in New York County Supreme Court. Subsequently,

jurisdiction over custody and visitation issues was transferred from the District of Columbia to

this court, where, by a stipulation dated April 2, 2014, plaintiff agreed that his access to the child

would continue to be supervised. On March 3, 2015, Justice Deborah A. Kaplan, the judge who

presided over the case until it was transferred to me, made certain rulings on the record. After

she had finished, the following colloquy between Justice Kaplan and plaintiff took place in open

court:

THE COURT: Is there anything else, Mr. Zappin?

MR. ZAPPIN: Yeah, your Honor. I am tired of these lies coming from you on the record. The motion about Dr. Ravitz was not fully briefed and you know that. And you put in your order. You put it in your order that I withdrewthe Article 78 proceeding after the attorney general had filed responsive papers. That’s not true. He filed it after I filed a notice of discontinuance. It’s lie after lie after lie that comes out of your mouth. And I am tired of it.

Plaintiff’s accusations as to “lies” coming from the court did not end there. The

transcript provides that plaintiff concluded his argument in this manner:

MR. ZAPPIN: I just want to make it known on the record that I am tired of the lies coming from the court and tainting of the record, knowing full well this is going to go to the Appellate Division. And we’re gonna be in the Appellate Division tomorrow, getting a stay, and then we’ll go back down to D.C. on Friday, and we’re going to open up to Ms. Comfort’s domestic violence petition, and we’re gonna have a hearing down there in from of Judge Blant, because that’s who she lied to, saying that she filed the motion and we’ll have him make a finding of domestic violence. So that’s all I have to say.

THE COURT: Are you finished?

MR. ZAPPIN: Oh, I’m finished, your Honor.

Plaintiff’s contemptuous remarks directed towards Justice Kaplan – made to her face in

her own courtroom in front of attorneys, litigants and court staff – were not restricted to the

statements quoted above. Without reciting the other deeply personal, and frankly outrageous,

verbal attacks that plaintiff launched against Justice Kaplan when he was before her on March 3,

2015, they can only be described as words not said in civil discourse, let alone ones that should

ever be uttered by an attorney to a judge in the context of a court proceeding.

During the time she had the case, Justice Kaplan rendered a number of decisions in which

she paints a vivid picture of plaintiff doing all he can to thwart the orderly administration of

justice. Although plaintiff has repeatedly charged that he is being deprived of a prompt hearing

to determine whether his access to the child must remain supervised, the record shows that he

has acted in a manner actually designed to prevent such a hearing from happening. In a 64-page

decision issued on February 27, 2015, Justice Kaplan wrote the following:

The court notes that the husband has engaged in a pattern of conduct which has undoubtedly delayed the resolution of this matter. Most obviously, the husband discontinued his divorce action in the midst of an evidentiary hearing on the issue of whether his access time should be supervised. He has also filed numerous motions in this action, many on an emergency basis, that he later withdrew or failed to carry through with the relief the court granted him. The husband filed a motion to depose his mother, which the court granted in part, but he decided to not carry through with the deposition. Then, he noticed counsel in this case that he was bringing an Article 78 proceeding in the Appellate Division, but changed the date without informing them. The husband withdrew his Article 78 petition only after the Assistant Attorney General prepared and submitted opposition papers. He also filed motions to disqualify the AFC and to strike the report and testimony of Dr. Ravitz [the court appointed forensic psychiatrist], only to withdraw these applications after they were opposed by the wife and AFC, fully submitted to the court, and sub judice.

Even after the case moved beyond the machinations described by Justice Kaplan –

including plaintiff first discontinuing the divorce action in the middle of trial, then claiming to

have relocated to North Carolina, then to West Virginia, and finally reinstating the action –

plaintiff has endeavored to halt its forward progress. In the relatively brief time that I have had

the case, it has become apparent that while plaintiff vehemently complains that he is being

denied a hearing on continued supervised access with the child, he intentionally continues the

pattern of delay and disruption described by Justice Kaplan. In a decision I rendered in open

court on July 22, 2015, which dealt with, inter alia, plaintiff’s application to immediately lift

supervision, I stated:

Seventeen months of supervised visitation is a long time. The problem is the plaintiff has done everything he could to thwart this case going forward. This case has not been adjourned by the defendant. It has not been adjourned by the attorney for the child. It has not been delayed by either of them. It’s been delayed by the plaintiff.

After plaintiff interrupted the custody trial by discontinuing the action, only to then

reinstate it, Justice Kaplan sought to set new dates for the trial to continue. By an order dated

February 13, 2015, she directed that the trial resume on March 6, 2015. However, the trial did

not go forward as scheduled and was adjourned to May, apparently at plaintiff’s request. When

May approached, plaintiff delayed the trial again. Justice Kaplan’s order of May 6, 2015 stated:

Given the father’s representations concerning his professional obligations – including his fear of losing his position at [his law firm] if the trial is not adjourned – the court grants his request to vacate the trial dates for May 18 and 22, 2015, June 8, 11, 12, 15 and 16, 2015. The custody trial in these matters shall continue on November 12, 2015 at 10 a.m . . . .

In a series of decisions rendered over the past two months, I have stated in no uncertain

terms that the trial will go forward as scheduled on November 12, as ordered by Justice Kaplan,

and then will continue to its completion on November 24, 2015. Despite these pronouncements,

plaintiff persists in filing applications for interim relief and seeking discovery as if the case were

in its early stages while ignoring the fact that the child custody and access trial, that he purports

to want so badly, is set to resume imminently with a final decision to be rendered soon thereafter.

Since July 22, 2015, I have denied three motions brought by plaintiff seeking pendente lite relief

and have declined to sign no less than four other Orders to Show Cause presented by him,

finding that they were all without merit. Within the last few weeks, he reportedly has served at

least 14 new subpoenas, including one on defendant’s attorney and one on the law firm where

defendant is employed. Plaintiff has also made demands for defendant’s medical records from

doctors who treated her as far back as college.

Plaintiff’s barrage of motions and his deluge of subpoenas, coupled with constant e-mails

to the court and his threats to commence Article 78 proceedings and federal civil rights actions,

are reflective of an unfortunate litigation strategy: avoid resuming the trial in favor of attempting

to bludgeon defendant, the AFC, and the court into submission.2 As that strategy has proven

increasingly unsuccessful, plaintiff’s tactics, and the language he employs in his motion papers,

2Plaintiff is a constant presence in this courthouse filing his own motions and his response to the other attorneys’ motions, almost all of which have been precipitated by his actions. His papers – voluminous, citation-strewn, and, in the end, largely redundant – are never-ending, as are his e-mails, letters, subpoenas, and discovery demands.

Moreover, plaintiff’s pro se activities connected to this matter have by no means been limited to the divorce proceeding in this court, or his subsequent petition for a writ of habeas corpus that was consolidated with the divorce action. His numerous forays into other courts include recently filing a petition against defendant in New York County Family Court; suing defendant, her family and her lawyers in the Federal District Courts for the Southern District of New York and the District of Columbia; and bringing Article 78 proceedings in the Appellate Division against the judges who have been assigned to this case, proceedings that he has ended up withdrawing after forcing the Attorney General’s office to go through the time and expense of having to prepare opposition. Plaintiff also stated in an e-mail last month to the Attorney General, following the denial of one of his many Orders to Show Cause, that he intends to commence an action in federal court for deprivation of his civil rights pursuant to 42 U.S. Code § 1983.

In addition, as evidenced by a copy of the complaint he has attached as an exhibit to his cross-motion, plaintiff is now representing himself in the New York State Court of Claims in a case entitled Anthony Zappin v State of New York. In that case, he seeks damages for what he alleges are wrongs committed against him by a judge and a court officer of the New York State Unified Court System, both of whom he contends are guilty of “assault & battery,” “false arrest/imprisonment,” and “civil conspiracy to commit assault & battery and false arrest/imprisonment.” Plaintiff further alleges in the complaint that as an act of “retaliation” against him for bringing an Article 78 proceeding, the judge in question “contact[ed] the West Virginia State Parole Board to recommend that Claimant’s mother (who is currently incarcerated in West Virginia) be denied early parole.”

have grown evermore extreme and out of step with what is appropriate and permissible advocacy

by an attorney, even one who is representing himself. It is in the midst of this maelstrom of

misconduct that the AFC has been forced to bring the two motions that are now before the court.

Legal Analysis

There does not exist one set of standards for an attorney representing others and another

set of standards for an attorney representing him or herself: in both instances an attorney must

adhere to the same ethical prescriptions that guide the legal profession. As the Supreme Court of

the State of Connecticut has aptly written:

Whether an attorney represents himself or not, his basic obligation to the court as an attorney remains the same. He is an officer of the court . . . . Disciplinary proceedings not only concern the rights of the lawyer and the client, but also the rights of the public and the rights of the judiciary to ensure that lawyers uphold their unique position as officers . . . of the court . . . . An attorney must conduct himself or herself in a manner that comports with the proper functioning of the judicial system (Notopoulos v Statewide Grievance Committee, 277 Conn 218, 231-32 [2006], cert denied, 549 US 823 [2006], quoting Matter of Presnick, 19 Conn App 340, 345 [Conn App 1989], as quoted in In the Matter of Charlene Morisseau, 763 F Supp 2d 648, 652 [SDNY 2011]).

Thus, when plaintiff is before this court representing himself in his own divorce action,

he is as bound by the Rules of Professional Conduct and is required to conform his behavior to

its dictates as much as when he is before a federal court representing a party in a patent

infringement case.

There is little question that the manner in which plaintiff spoke to Justice Kaplan, or, for

that matter, what he wrote to Judge Epstein in the District of Columbia proceeding, constitutes a

breach of the Rules of Professional Conduct (see e.g., Matter of Delio, 290 AD2d 61 [1st Dept,

2001]; Matter of Dinhoffer, 257 AD2d 326 [1st Dept 1999]).3 Regrettably, plaintiff has treated

3Effective April 2009, the Rules of Professional Conduct were promulgated as Joint Rules of the Appellate Divisions of the Supreme Court. They supersede the former Part 1200,

his opposing counsel, Robert Wallack, Esq., in the same offensive and patently improper manner.

Justice Kaplan criticized plaintiff for having submitted papers in which he included “irrelevant,

personal information about the wife’s counsel.” She stated that what was “[e]ven more

egregious is the husband’s inclusion of pictures of the attorney’s young son.” This conduct

prompted Justice Kaplan, in her decision of August 8, 2014, to write: “The husband is a

practicing attorney and shall conduct himself in these proceedings in a professional manner. He

is referred to the Rules of Professional Conduct, particularly Rule 3.3 entitled Conduct Before

Tribunal.”

However, plaintiff continues to fail to abide by Justice Kaplan’s directive to conduct

himself in a professional manner when dealing with opposing counsel. As I set forth in my July

22, 2015 decision, he persisted in sending Mr. Wallack and his associates taunting emails

referring to Mr. Wallack’s personal life and relationships. Such communications are in clear

violation of an attorney’s obligation to refrain from engaging in “undignified or discourteous

conduct” (see Rules of Professional Conduct 3.3 (f) (2); see also Matter of Kavanagh, 189 AD2d

521 [1st Dept 1993]). Although I found that Mr. Wallack’s status as opposing counsel did not

come within the ambit of being a “protected person” for the purposes of granting an order of

protection, I did enter an order limiting plaintiff’s communications with him and his firm to

matters directly concerning the case and directing plaintiff to make no reference to counsel’s

family or personal relationships.

The AFC’s Motion to Quash Plaintiff ’s Subpoena (Motion Seq. 19)

It is neither plaintiff’s penchant for insulting and denigrating the judges before whom he

appears, nor his propensity for engaging in improper conduct towards opposing counsel, that

constitutes the worst form of behavior he has exhibited as a self-represented attorney in this case.

formerly known as the Disciplinary Rules of the Code of Professional Responsibility.

That dubious distinction goes to the manner in which plaintiff has treated the AFC. The record

reflects that soon after Ms. Cohen was appointed to her role in the case, plaintiff began doing

everything in his power to prevent her from performing her court-appointed duty to represent the

parties’ son. Even more disturbingly, he has actively campaigned to impugn her reputation in the

public forum. Consistent with what I found in my July 23, 2015 decision – denying one of

plaintiff’s many applications to disqualify Ms. Cohen from continuing to be the child’s attorney

– the motive for his aggressions is quite simple: She is advocating a position he disagrees with.

Ms. Cohen was appointed to be the AFC by orders issued by Justice Sherry Klein Heitler,

in her capacity as then Administrative Judge, on August 11, 2014, and by Justice Kaplan on

October 27, 2014. Soon after her appointment, Ms. Cohen took the position, exercising

substituted judgment for a non-verbal infant, that visitation should continue to be supervised as a

result of concerns raised about plaintiff’s emotional state. From that point on, plaintiff has

dedicated himself to having her removed from her role.

Plaintiff’s efforts to rid himself of the AFC have not been limited to the multiple motions

for disqualification that he has made to both Justice Kaplan and me – including part of his cross-

motion here – but rather, those efforts have extended to tactics designed to extort, bully, and

intimidate. The first was to intentionally violate Justice Kaplan’s order that he share the cost of

Ms. Cohen’s services equally with defendant. He did so by refusing to pay even one dollar of the

fees incurred by Ms. Cohen for her services, even as his onslaught of motions directed at her

clearly caused her to expend substantial time and effort to oppose them. The idea, it appears,

was to inflict financial hardship on the AFC, so that she would be unable to discharge her duty to

represent the child’s interests.

When the AFC demanded payment, plaintiff responded with a threatening letter. The

letter, dated February 12, 2015, which I referred to in my July 22, 2015 decision, contains the

following passage:

I want to be clear, this letter is the first instance in which I am telling you that I will not pay your invoices. And, it is for the very justifiable reason that supervised visitation – which you have advocated for without any record in the case – has made me indigent.4 More importantly, at each appearance, you have inappropriately threatened me with “judgments.” Putting aside the lack of respect and cordiality you have displayed to a fellow member of the bar, you are more than welcome to seek judgments against me if you feel it is appropriate. However, you should be aware that any such attempt will be swiftly and publicly met with claims against you and your firm for fraud, tortious interference with parental rights, legal malpractice and disgorgement, among others.

In spite of the threats made to her by plaintiff, the AFC pressed her claim by moving for

an order directing plaintiff to pay her the many thousands of dollars that he owes. True to his

word, plaintiff responded by “swiftly and publicly” retaliating against Ms. Cohen and her law

firm. He did so by having Zappin Enterprises, a company which lists plaintiff and his father as

its owners and plaintiff as its designated agent, and is run from the same West Virginia address

where plaintiff claimed to have lived when he left New York, register the internet domain name

www.harrietnewmancohen.com. “Harriet Newman Cohen” is the AFC’s full name.

4The notion that supervised visitation has rendered plaintiff “indigent” is not even remotely plausible. Not only is supervised access something plaintiff voluntarily agreed to in the first place, but it has continued because of real concerns about his behavior, concerns that still have not been addressed because he has continuously prevented the trial from going forward. Moreover, as stated above, plaintiff earns at least $230,000 a year. He pays no child support to defendant, the full-time custodial parent, but instead contends that it is he who is actually supporting the child because he buys him toys, clothing and diapers. In making this claim, plaintiff seems to have ignored the fact that a child’s needs also include food, shelter, medical care, and where, as here, the custodial parent works, childcare. If plaintiff were in fact paying child support as legally required, his basic obligation, based on his base salary alone and in accordance with child support calculations applicable to high income parties in New York County, would compute to approximately $37,000 per year. With statutory add-ons for medical costs and childcare, his total obligation would likely exceed $55,000 per year. This is far more than what plaintiff possibly pays for supervised access, clothing, diapers and toys.

The purpose of the website was chillingly clear from various postings made under the

plaintiff’s father’s name. Illustrative of these postings, and indicative of the whole nature of the

enterprise, are the following messages:

Harriet. You’re a very sick and greedy woman. I pray for you and hope you seek help.

I intend to keep the public apprised of your misconduct and disturbing behavior.

Quickly climbing up the Google rankings. Stay tuned for updates.

In response to this development, the AFC brought on an emergency Order to Show Cause

seeking a temporary restraining order barring plaintiff from continuing to operate the website.

She also sought an order of protection against him. Prior to the motion being heard, plaintiff had

the website’s postings removed.

On July 22, 2015, the date on which I placed the decision on the record resolving five

open motions, I denied Ms. Cohen’s application for an order of protection. But as a similar

consequence to plaintiff’s unacceptable conduct towards Mr. Wallack, I ordered him to comply

with his ethical obligations when dealing with the AFC. I also awarded Ms. Cohen and her firm

a judgment against plaintiff in the sum of $18,286.32, with an additional $3,600 in fees for

having to bring the enforcement motion. The amount awarded represented plaintiff’s share of

the fees for Ms. Cohen’s services through January 31, 2015. In the decision, I further provided

that the AFC could renew her request for fees incurred after January 31, 2015 upon more

complete papers and a clearer account as to what portion of the total remaining balance was

attributable to plaintiff.

No sooner than I had made my rulings, plaintiff, in what the AFC termed a clear act of

retaliation, had Ms. Cohen served with a subpoena. The subpoena demands that she produce a

wide range of documents from her case file. The AFC correctly asserts that she is not a party to

the action, nor is she a non-party witness; she is an attorney duly appointed by the court to

perform a clearly defined duty: representing the child to the best of her ability (see 22 NYCRR

§7.2[d] [“Where the child is the subject, the attorney for the child must zealously advocate the

child’s position”]). Moreover, as courts have clearly stated, her role “is to be an advocate for and

represent the best interests of the child, not the parents” (In re Brittany W., 25 AD3d 560 [2d

Dept 2006]).

Contrary to plaintiff’s apparent intentions, Ms. Cohen’s position as an advocate cannot be

compromised by plaintiff’s efforts to make her into a witness. Nor can he seek to invade the

privilege afforded her – or any other attorney representing a client – under CPLR 3401 (c) and

(d) to the confidentiality of her attorney work-product and the material she has prepared in

anticipation of litigation. Moreover, plaintiff cannot be permitted to violate the longstanding rule

in the First and Second Judicial Departments prohibiting parties from engaging in extensive

discovery in custody cases (see S.B. v U.B., 38 Misc 3d 487, 497 [Sup Ct, Kings County, 2012]).

As the Appellate Division for the Second Department has noted, “because the potential

for abuse in matrimonial and custody cases is so ‘great,’ the court’s discretionary power to limit

disclosure and grant protective orders is equally broad” (Garvin v Garvin, 162 Ad2d 497, 499

[2d Dept 1990] [internal citations omitted]). On its face, and even more so when viewed within

the context of plaintiff’s overall conduct towards Ms. Cohen in this proceeding, plaintiff’s

subpoena on her constitutes another tactic in what threatens to be an inexhaustible arsenal.

Because the documents sought are either irrelevant to plaintiff’s case, privileged, or otherwise

subject to established principles militating against their production, the motion by the AFC to

quash the subpoena must be granted, as must her application for a protective order requiring

plaintiff to obtain leave of court before serving any further such subpoenas.

The AFC’s Motion With Regard to Plaintiff ’s Complaint to the Office of Professional Medical Conduct (OPMC) (Motion Seq. 21)

Perhaps the most troubling action taken to date by plaintiff against the AFC is not

something that he has done directly to her. Instead, it is something that he has done to Ms.

Cohen’s expert witness, a board certified psychiatrist. Plaintiff has filed a complaint against the

psychiatrist with the OPMC, the agency responsible for disciplining medical doctors.

Plaintiff’s complaint to the OPMC, in the form of a three-page, single-spaced letter dated

August 7, 2015, begins, “I write to file a formal complaint of professional misconduct,

negligence and fraud against [the psychiatrist] . . . As explained below, [his] egregious conduct

warrants discipline by the Office of Professional Medical Conduct.” Plaintiff goes on to state

that because he has concluded that the psychiatrist has no experience in custody or child-related

matters, “any work performed by him on the matter necessarily amounts to medical malpractice

and negligence as well as is tantamount to fraud.” Plaintiff further complains that the

psychiatrist’s hourly rate is “outrageous and unconscionable,” he has engaged in a “fraudulent

scheme,” and has filed “frivolous money judgments.” According to plaintiff, “such clearly

dishonest behavior by a medical professional warrants discipline by the OPMC.” Finally,

plaintiff writes in the letter that what is “perhaps most disturbing” is that the psychiatrist will be

called as a witness by the AFC to “opine on the mental status” of the parties when he has never

spoken to or evaluated them. This, the letter claims, “constitutes malpractice.”

What is so concerning about plaintiff’s complaint to the OPMC is not so much what he

says – as reckless and dishonest as those statements may be – but what he has chosen not to say.

Never once in his letter does he mention that the psychiatrist was court-appointed pursuant to an

order signed by Justice Kaplan on September 12, 2014. Never once does he mention that the rate

the psychiatrist was to be paid is specified in Justice Kaplan’s order; the fee being set by the

court, not by the doctor himself. Never once does he mention that after plaintiff violated the

order by refusing for almost a year to pay his share of the psychiatrist’s retainer, the AFC moved

to compel him to comply with the order, and that on July 22, 2015, I granted the motion and

found that the psychiatrist was entitled to enter judgment against plaintiff for the long-

outstanding sum. And never once does plaintiff mention that Justice Kaplan’s order provides

that the reason for the appointment is to enable the AFC to have her own expert review the report

of the forensic evaluator and observe his testimony, something generally referred to as a “peer

review.”5 These facts, which plaintiff chose not to reveal, are overwhelmingly significant and

relevant to the disciplinary proceeding that plaintiff commenced through his complaining letter,

and they would certainly be essential to the AFC’s expert’s defense against the charges (see

Janecka v Casey, 121 AD2d 28 [1st Dept 1986]).

It is beyond question that action taken in this case by the AFC’s expert was done in

accordance with a valid court order. It is equally clear that plaintiff’s sole reason for filing the

complaint with the OPMC – and doing so only two weeks after I awarded the doctor a money

judgment against him – was to send a not-so-subtle message. That message is being: If you do

something that plaintiff does not agree with – whether you a party, an attorney, a judge, or a

doctor – he will do whatever he can to harm you. Here, plaintiff has gone beyond the pale by

cynically and maliciously interfering with a physician’s most valuable asset: his license to

practice medicine. It is ironic that plaintiff, in his papers, bristles at the mere suggestion that he

has violated the Rules of Professional Conduct, and he accuses anyone who makes such a

suggestion of recklessly seeking to destroy his livelihood by preventing him from practicing law.

5Notably, plaintiff informed the court via an e-mail dated September 8, 2015, that he has retained his own expert to do a peer review of the forensic custody evaluation report.

Ironically, it seems plaintiff has no compunction against doing this to another professional.6

As it turns out, the OPMC acted swiftly on plaintiff’s complaint against the doctor by

finding the complaint was without merit and dismissing it less than three weeks after it was filed.

On September 14, 2015, plaintiff submitted a sur-reply affidavit, to which he attached as an

exhibit a letter sent to him by the OPMC. The letter, dated August 27, 2015, which plaintiff

acknowledges receiving on August 31, 2015, states that the OPMC is dismissing the complaint

without further proceedings because “the circumstances described in your correspondence do not

constitute prosecutable professional misconduct in the practice of medicine.” As a result, the

relief sought by the AFC in Motion Sequence 21, with the exception of her request for sanctions,

is now moot inasmuch as her expert will not have to defend himself in a medical disciplinary

proceeding.7

The AFC’s Application for the Imposition of Sanctions Against Plaintiff (Motion Seq. 21)

The OPMC’s summary dismissal of the complaint confirms the righteousness of the

AFC’s position that plaintiff acted with malice and reckless disregard for the truth in bringing

6Plaintiff apparently has no problem adhering to a double standard in this litigation. On one hand, he has complained about any mention of the law firm where he is employed, contending that it will jeopardize his position there, and he has sought and been granted a protective order barring defendant from issuing a subpoena to his firm. On the other hand, plaintiff has issued subpoenas to the law firm where defendant is employed, regularly mentions defendant’s firm by name in his papers, and has attached as an exhibit to a prior motion a copy of an internal memo from her firm.

7It is noted that plaintiff did not submit his sur-reply until September 14, 2015, which was full week after he admits to having received the OPMC letter of dismissal on August 31, 2015. If plaintiff had promptly notified the AFC of the dismissal, she would not have had to prepare much of her reply, which was submitted on September 9, 2015, the final submission date for all papers on the motion. Nor would the court have had to address, as it did in a draft of this decision, those applications by the AFC that are now moot. It is further noted, that plaintiff’s affidavit in opposition and cross-motion are both dated September 1, 2015, but they make no mention of the dismissal letter even though plaintiff concedes having received it the day before. Finally, it is noted that although plaintiff’s sur-reply was submitted without court approval and after the September 9 submission date, I have nevertheless fully considered it in deciding the motion.

disciplinary charges against the psychiatrist. This, in turn, reinforces her request for sanctions to

be imposed against plaintiff as a result of the bad-faith disciplinary complaint he filed. Although

the AFC’s request for sanctions was initially made in her reply affirmation, plaintiff had ample

opportunity to respond, and thus be heard on the issue of sanctions, in his sur-reply.8 Even in the

face of the summary dismissal of the complaint by the OPMC, plaintiff, in his sur-reply, offers

no defense for his actions. In fact, the only defense he has ever offered for filing the disciplinary

complaint is in his Affidavit in Opposition, where he claims “qualified immunity” under Section

230 (11) (b) of the New York Public Health Law. That provision, as quoted by plaintiff in his

affidavit in opposition, states: “Any person . . . who reports or provides information to the board

in good faith, and without malice shall not be subject to an action for civil damages or other

relief as a result of such report.” Plaintiff, however, offers absolutely nothing to indicate that his

actions taken toward the AFC’s expert were done either in good faith or without malice.

22 NYCRR § 130-1.1 provides in relevant part the following with regard to sanctions:

(a) The court, in its discretion, may . . . impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Part.

(b) The court, as appropriate, may . . . 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

8Both the AFC and defendant have made numerous requests in prior motions for sanctions to be imposed against plaintiff for transgressions alleged to be in violation of the Rules of Professional Conduct and other acts of attorney misconduct. Both Justice Kaplan and I, in the decisions rendered on those motions, chose not to sanction plaintiff. Instead, each of us opted to caution plaintiff about his behavior and remind him of his ethical obligations as an attorney at law.

another; or (3) it asserts material factual statements that are false.

Plaintiff’s letter of complaint to the OPMC, which intentionally omits reference to

several court orders that belie every allegation contained therein, falls squarely into the above

definition of frivolous conduct. Similarly, the timing of the complaint, coming as it did only

after I ordered plaintiff to pay the AFC’s expert the retainer that Justice Kaplan had set in her

appointment order, reflects an obvious intent on plaintiff’s part to retaliate against him. And as

evidenced by its summary dismissal, plaintiff, a self-described “trained and skilled” litigator,

could not have reasonably believed that there was ever any merit to the complaint to begin with.

Thus, the inescapable conclusion is that what plaintiff did he was for one purpose, and one

purpose

alone: “to harass or maliciously injure another.”

In determining sanctions, “the court shall consider, among other issues the . . .

circumstances under which the conduct took place” (22 NYCRR § 130-1.1 [c][3]). As should be

obvious from the recitation of the history of this case, plaintiff’s misconduct exhibited with

regard to the OPMC complaint is not an isolated incident. Regrettably, it is but one instance in a

pattern of improper behavior. Although the hope was that plaintiff would heed the court’s

admonitions and represent himself according to the dictates of his profession, that has not

happened.

Under these circumstances, where warnings have had no effect on plaintiff’s conduct, it is

incumbent – for the integrity of the judicial process, as well as for the protection of the other

litigants and the child – that penalties be imposed (see L.G. v M.G., New York Law Journal,

August 31, 2015, J. Gesmer [imposition of $317,480 in sanctions for attorney misconduct]; see

also Gabrelian v Gabrelian, 108 AD2d 445, 454 [2d Dept 2009] [“(Courts have) the specific

power to impose financial sanctions upon a party or an attorney who has engaged in abusive

litigation practices”]; D.W. v R.W., 34 Misc 3d 1222[A] [Sup Ct, Westchester County 2012]

[“Costs and sanctions may be imposed against an offending party or attorney to punish past

conduct and to deter them from engaging in further frivolous conduct”]). Accordingly, plaintiff

is sanctioned $10,000, with half to be paid to the AFC to compensate her for the cost of bringing

the two motions that are the subject of this decision, and half to be paid to the Lawyers Fund for

Client Protection to penalize plaintiff for conduct that has wasted judicial resources and

otherwise adversely impacted the administration of justice (see 22 NYCRR 130-1.3).

Plaintiff ’s Cross-Motion (Motion Seq. 21)

The first branch of plaintiff’s cross-motion to be considered is his latest attempt to have

Ms. Cohen disqualified from continuing to serve as the AFC. Plaintiff asserts that she should be

disqualified because she has a conflict of interest. The conflict, according to plaintiff, stems

from the AFC’s motion to have him held responsible for her expert’s attorney’s fees and “lost

billable time” resulting from the filing of the OPMC disciplinary complaint. By advocating for

relief for her expert, plaintiff argues, Ms. Cohen is in effect representing the expert at the same

time she is representing the child, something that she would be barred from doing.9

Plaintiff cites two cases in support of his request to disqualify the AFC on these grounds

but both are clearly irrelevant, distinguishable, and misplaced. In Cooke v Laidlaw Adams &

Peck, Inc., (126 AD2d 453, 455 [1st Dept 1987]), corporate counsel that appeared on behalf of a

corporate officer in an SEC investigation was deemed to have created a presumption of an

attorney-client relationship and was later disqualified to represent the corporation against the

9In light of the decision by the OPMC dismissing the complaint against the AFC’s expert, which rendered moot the AFC’s need to seek relief for her expert, it stands to reason that plaintiff would abandon his application to have Ms. Cohen removed as the AFC because of what he perceives as her conflict of interest. Plaintiff, however, in his sur-reply, filed after the dismissal, continues to press for her removal on these grounds.

officer for wrongdoing. Here however, the mere fact that a request for fees was requested by the

AFC does not conflict the AFC from her role in this custody dispute, and certainly does not rise

to the level of creating an attorney-client relationship that would warrant her disqualification.

Further to this point, in NLRB v Jackson Hosp. Corp., (257 FRD 302, 311-312 [DDC 2009]),

cited by the plaintiff,10 the District Court for the District of Columbia acknowledged that in Equal

Employment Opportunity Commission (“EEOC”) proceedings, the actions of the “client” are the

determining factor in determining whether a de-facto attorney-client relationship has been

created between the aggrieved and the commission (“. . . a de facto attorney-client relationship

existed by the fact that the ‘clients’ had expressly asked the EEOC to seek relief on their behalf”

NLRB, 257 FRD at 312; “The question of whether an attorney-client relationship exists rests on

the actions of [the ‘client’]” who affirmatively “accepted [the Secretary’s legal staff] as his own

lawyers” id., quoting Donovan v Teamsters Union Local 25, Int'l Bhd. of Teamsters, Chauffeurs,

Warehousemen & Helpers of Am., 103 FRD 550, 552-53 [D. Mass. 1984]).

Here, quite tellingly, the AFC’s motion did not contain an affirmation or affidavit from

the expert, nor was there a statement from him of any kind. Consequently, there is no evidence

that the expert was even aware of the relief being sought or any affirmative action on his part

demonstrating his intent to have the AFC appear on his behalf. Accordingly, an attorney-client

relationship was never created. Thus, there is no basis to conclude that there is a conflict of

interest on the part of the AFC, and plaintiff’s application to disqualify her must be denied.

The second branch of plaintiff’s cross-motion seeks to renew his prior motion to

disqualify Ms. Cohen. In my July 22, 2015 decision, and again in my decision of July 23, 2015,

10Plaintiff does not cite NLRB for its actual holding (which found that no de facto attorney-client relationship was present), but rather for a line of EEOC “collecting cases” appearing in the court’s legal analysis. It is not clear why plaintiff failed to simply cite the desired EEOC cases directly. Nevertheless, the EEOC cases that plaintiff seeks to point the court’s attention to actually support the AFC’s position, not his.

wherein I declined to sign plaintiff’s Order to Show Cause seeking to renew his application for

disqualification, I thoroughly set the out the reasons why plaintiff’s application was baseless and

why it was in the child’s best interests that Ms. Cohen remain in the role. Plaintiff has failed to

allege any new facts that were not considered in my two prior denials. Thus, the application

does not meet the basic requirement for a motion to renew (see CPLR 2221), and it must

accordingly be denied.

The same holds true with regard to plaintiff’s application to vacate my previous orders

requiring him to pay his court-ordered, fifty percent share of the fees the AFC incurred in her

representation of the parties’ child. This will be the fourth time that I have had to address the

same application in the last two months, having rendered decisions on July 22, July 23 and

August 12, 2015. Each time, I have set forth the reasons why plaintiff is obligated to pay the

sums due that he has unjustifiably refused to pay, with such refusal having entitled the AFC and

her firm to enter a money judgment against him. If plaintiff disagrees with my decisions, he

should appeal them to the Appellate Division, not continuously present the same meritless

application, or he will risk further sanctions.

Plaintiff has also sought in his cross-motion leave to renew his application for an order

permitting him to take the child to Weill-Cornell Medical Center to be examined for what

plaintiff claims are “multiple signs of development delay.” Once again, plaintiff has failed to set

forth any new facts that were not considered when I made my decision denying his initial

application. In my July 22, 2015 decision, I detailed the fact that there was nothing in the record

to indicate that the child suffered from any developmental issues, and that all the evidence firmly

established that he is a healthy, thriving infant, who, in the words of his pediatrician, “will reach

developmental milestones in a timely fashion.” In our legal system, we do not force children

involved in a divorce to undergo unnecessary medical exams so that one parent can pursue an

unfounded fixation or search for material to use against the other.

In the last branch of his cross-motion, plaintiff seeks permission to call the AFC as a

witness and cross-examine her in the upcoming custody trial. He bases this request in part on the

AFC having opposed his request to have the child examined for development delay. It also

involves the AFC’s assertions that whatever minor bruises and scrapes the child has exhibited,

and which plaintiff has sought repeatedly to portray as proof of defendant’s physical neglect or

abuse of the boy, are simply the normal result of being an active two-year-old. Contrary to

plaintiff’s position, these assertions do not constitute the AFC acting as a fact witness. Rather, it

is the AFC advocating on behalf of her client, the child, by seeking to have him avoid needless

medical exams or unwarranted, and very likely harmful, intervention by the police or child

protection officials. To inform the court as to what she has observed with regard to the child’s

health and functioning, as well as what she has learned from the child’s treating pediatrician, is

entirely within the scope of the AFC’s duty to “make their positions known to the court orally or

in writing” (Cervera v Bressler, 50 AD3d 837, 841 [2d Dept, 2008]). Thus, this application,

along with the other branches of plaintiff’s cross-motion, must be denied.

Conclusion

Plaintiff has every right to represent himself in his own divorce. He has that right even if

“his self-representation may make the litigation process more difficult or unpleasant” (Nimkoff v

Nimkoff, 18 AD3d 344, 346 [1st Dept 2005], rearg denied 2005 NY App Div LEXIS 8744 [1st

Dept, Aug. 18, 2005]). But he does not have the right to represent himself in the way that this

decision has documented. As one distinguished federal judge has written, “the fact that one

appears pro se is not a license to abuse the process of the Court and to use it without restraint as a

weapon of harassment and libelous bombardment” (Kane v New York, 468 F Supp 586, 592

[SDNY 1979] [Weinfeld, J.]. Plaintiff needs to recognize that continuing his campaign of

harassment and abuse will only serve to further undermine his case and result in the imposition

of additional sanctions against him.

In accordance with the foregoing, it is

ORDERED, that Motion Sequence 19, the AFC’s motion to quash the subpoena and issue

a protective order, is granted; and it is further

ORDERED, that Motion Sequence 21, the AFC’s motion for relief with respect to

plaintiff’s disciplinary complaint to the OPMC concerning her expert psychiatrist, is denied as

moot, except to the extent that it is further

ORDERED, that pursuant to 22 NYCRR § 130-1.1, plaintiff is sanctioned for his conduct

and as a consequence thereof is directed to pay the sum of $10,000, with $5,000 to be paid to the

Attorney for the Child for her attorney’s fees incurred as a result of plaintiff’s misconduct

necessitating the instant motions, and with $5,000 to be paid to the Lawyer’s Fund for Client

Protection as a result of plaintiff’s misconduct that has wasted judicial resources and otherwise

adversely impacted the administration of justice; and it is further

ORDERED, that plaintiff is directed to pay each $5,000 portion of the aforesaid $10,000

sanction on or before October 30, 2015; and it is further

ORDERED, that plaintiff’s cross-motion is denied in all respects.

This constitutes the decision and order of the court.

Dated: September 18, 2015 Enter: ___________________________

Matthew F. Cooper, J.S.C.

EXHIBIT 8

EXHIBIT 9

10/27/15, 2:32 PMGmail - Subpoena to ALM in Zappin v. Comfort

Page 1 of 1https://mail.google.com/mail/u/0/?ui=2&ik=0f70d525f4&view=pt&q=…s=true&search=query&msg=1508c82550b043b9&siml=1508c82550b043b9

Anthony Zappin <anthony.zappin@gmail.com>

Subpoena to ALM in Zappin v. Comfort

Calman, Camille <CamilleCalman@dwt.com> Wed, Oct 21, 2015 at 6:25 PMTo: Anthony Zappin <anthony.zappin@gmail.com>Cc: David Schorr <deschorr@schorr-associates.com>

Dear%Mr.%Zappin:

%

Thanks%very%much%for%speaking%with%me%this%a;ernoon.%%Just%to%clarify,%what%I%said%was%that%it%was%myunderstanding%that%the%reporter%had%already%told%you%that%he%received%the%decision%from%a%clerk%in%JusAceCooper’s%chambers.%%We%believe%that%a%moAon%to%compel%is%likely%to%fail%because%New%York’s%Shield%Law%providesstrong%protecAons%to%media%parAes,%parAcularly%in%the%context%of%a%thirdKparty%subpoena%on%an%issue%collateralto%the%central%issue%of%the%liAgaAon.

%

Sincerely%yours,

%

Camille Calman%| Davis Wright Tremaine%LLP1251 Avenue of the Americas, 21st Floor | New York, NY 10020-1104Tel: (212) 603-6454 | Fax: (212) 489-8340Email:%camillecalman@dwt.com | Website:%www.dwt.com

Anchorage | Bellevue | Los Angeles | New York | Portland | San Francisco | Seattle | Shanghai | Washington, D.C.

%

%

%

%

%

From: Anthony Zappin [mailto:anthony.zappin@gmail.com] Sent: Wednesday, October 21, 2015 6:11 PM

[Quoted text hidden]

[Quoted text hidden]

EXHIBIT 10

EXHIBIT 11

EXHIBIT 12

10/27/15, 2:36 PMGmail - Trial Continuance / Motion to Clarify

Page 1 of 2https://mail.google.com/mail/u/0/?ui=2&ik=0f70d525f4&view=pt&q=…qs=true&search=query&msg=143a1663c90a9cc5&siml=143a1663c90a9cc5

Anthony Zappin <anthony.zappin@gmail.com>

Trial Continuance / Motion to Clarify

Matthew Andelman <mandelman@delaneymckinney.com> Fri, Jan 17, 2014 at 1:11 PMTo: "Anthony Zappin (anthony.zappin@gmail.com)" <anthony.zappin@gmail.com>

Mr. Zappin:

In light of the call with Dr. Zuckerman as well as your Motion to Clarify and other recent events, we intend to ask theCourt for the following:

1) Continuance of trial until early June;

2) Schedule trial for three days;

3) Scheduling new trial date ASAP (speaking to parties as needed via phone) to take advantage ofcurrently available dates that may not be available by time of next in-court hearing;

4) Keeping March 5 hearing, but changing into a pendente lite hearing on issues of child support andattorneys’ fees, as well as a hearing on any other motions still pending at that time;

At this stage, I am not sure which points you still or can agree to, so if there are any, please let me know today and Iwill let the court know when we seek our relief to aid in its understanding of what, if any, scheduling issues arecontested.

Matthew B. Andelman

5425 Wisconsin Avenue, Suite 401Chevy Chase, MD 20815T: (301) 913 5236F: (301) 913 5969

MAndelman@delaneymckinney.com

www.delaneymckinney.com

CONFIDENTIALITY NOTICE: The information contained in this communication is intended only for the use of the recipientnamed above. It is confidential and protected from disclosure; it may be legally privileged. If the recipient and/or reader of this

10/27/15, 2:36 PMGmail - Trial Continuance / Motion to Clarify

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message is not the intended recipient, you are hereby notified that any review, copying, disclosure, dissemination, distribution,or other use of this communication or any of its contents is strictly prohibited. If you have received this communication in error,please notify us immediately by return email or telephone at 301-913-5236.

IRS NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that this communication is notintended or written by us to be used, and cannot be used, by anyone for the purpose of avoiding tax penalties that may beimposed by the federal government.

EXHIBIT 13

(

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA FAMILY DIVISION

- - - - - - - - - - - - - - - x

ANTHONY ZAPPIN, Petitioner,

Docket Number: 2013 DRB 003821

vs.

CLAIRE COMFORT, Respondent.

Thursday, January 9, 2014

- - - - - - - - - - - - - - - x Washington, D.C.

The above-entitled action came on for a hearing

before the Honorable ANTHONY C. EPSTEIN, Associate Judge,

in Courtroom Number 101.

APPEARANCES:

On Behalf of the Petitioner:

Pro se

On Behalf of the Respondent:

MATTHEW B. ANDELMAN, Esquire Washington, D.C.

Deposition Services, Inc. 12321 Middlebrook Road, Suite 210

Germantown, MD 2087 4 Tel: (301) 881-3344 Fax: (361) 881-3338

info@DepositionServices.com www.DepositionServices.com

14-00260

tkg

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c 13

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MR. ZAPPIN: Blakeman.

MR. ANDELMAN: In New York?

MR. ZAPPIN: Yes.

THE COURT: Well, I, I mean I don't, there

doesn't seem to be any particular urgency in getting this

scheduled. I think it's a reasonable request on Mr.

Zappin's part to accommodate a pre-existing professional

commitment and the trial is only a month later. I still

would have authority to award, award it retroactively.

So, I'm not going to schedule that for a hearing. You

said there were two things and that was one.

MR. ANDELMAN: I just wanted to check on the

status of March 5th, that it's scheduled for trial, for

how many hours? There was an issue with Judge Di Toro

handling your calendar, and we just wanted to double-check

once we got here.

THE COURT: Her notes say it was scheduled for

half a day, which is what you had requested. I understand

there is a chance it may go --

MR. ANDELMAN: We'll see what -

THE COURT: longer than that. We'll see.

MR. ANDELMAN: That was, yes, at a different

time in the case, but

THE COURT: Okay.

MR. ANDELMAN: we'll address that as needed.

27

EXHIBIT 14

EXHIBIT 15

EXHIBIT 16

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK

ANTHONY ZAPPIN

-- against --

CLAIRE COMFORT,

X

Plaintiff, AFFIDAVIT OFMATTHEW C. HURLEY

Defendant.

X

Index No. 301568/14

MATTHEW C. HURLEY, being duly sworn, deposes and says:

1. I am Member at Mintz Levin Cohn Ferris Glovsky and Popeo P.C. ("Mintz

Levin") and am the Section Manager for the Intellectual Property Section at the firm. Anthony

Zappin is an associate in the Intellectual Property Section, and I am familiar with the matters and

cases that he is currently staffed on for the firm.

2. I submit this affidavit in support of Mr. Zappin's request to adjourn the custody

trial dates in the above-captioned matter. Mr. Zappin has informed me that the Court has

scheduled trial in this matter for May 18, 2015 at 10:00 a.m., May 22, 2015 at 10:00 a.m., June 8,

2015 at 10:00 a.m., June 11, 2015 at 10:00 a.m., June 12, 2015 at 10:00 a.m., June 15, 2015 at

10:00 a.m. and June 16, 2015 at 10:00 a.m. Mr. Zappin is currently staffed on matters at Mintz

Levin that conflict with these dates and on behalf of Mintz Levin I respectfully request that the

dates be adjourned until after July 15, 2015.

3. Without divulging privileged information, Mr. Zappin has been one of the lead

attorneys on a large litigation matter that is very important to the firm and to one of our largest

1

clients.I I understand that a significant portion of the case has a statutory deadline pursuant to 35

U.S.C. § 315(b) that requires multiple inter partes review petitions to be filed on or before July

15, 2015, and it is my understanding that this deadline cannot be adjourned, moved or altered by

any court or administrative body. Since the matter involves multiple filings and over the next

two and a half months, Mr. Zappin will be required to travel to meet with experts, participate in

client meetings, draft and prepare voluminous filings and participate in internal meetings at

Mintz Levin. By way of example, Mr. Zappin has had expert meetings nearly every day over the

past two months on the matter, which will invariably increase in frequency and length as the

statutory deadline approachs. He will need to spend countless hours between now July 15, 2015

preparing the filings in the matter. Thus, Mr. Zappin's schedule at Mintz Levin on the matter

will necessarily conflict with the trial dates currently set in this matter.

4. Given the proximity of the statutory deadline, Mr. Zappin has indispensable

knowledge regarding the matter that cannot be replaced on such short notice. Both the firm and

Mr. Zappin have put months of work into preparation of the project and have spent hundreds

hours preparing the filings and other materials, which must still be finalized over the next two

and a half months. It would be extremely difficult and detrimental to our client's interests to

replace Mr. Zappin on this matter given the looming, non-extendable statutory deadlines and the

amount of work that remains to be done. Accordingly, Mr. Zappin's absence for extended

periods of time for trial preparation and trial on the dates set by the Court in this matter will

severely prejudice the firm's client and the firm.

I Given the privileged and sensitive nature of the project, it would be inappropriate for me toreveal the exact details concerning the project or the specifics of Mr. Zappin's upcoming work on it. It ismy understanding that Ms. Comfort is also a patent litigator and therefore I must be particularly cautiousas to specific details I provide to the Court about Mr. Zappin's work at Mintz Levin to protect attorney-client privilege.

2

5. Additionally, Mr. Zappin is staffed on a patent litigation matter that requires one

of our clients to serve invalidity contentions on June 15, 2015. Mr. Zappin has been intricately

involved in the preparation of the contentions and would therefore need to be in the office on

June 15, 2015 and the days immediately preceding that date in order to finalize and serve the

contentions.

6. Should the Court adjourn the trial dates in this matter until after July 15, 2015,

Mintz Levin will make sure that Mr. Zappin's work schedule will not interfere with the new trial

dates set by the Court.

7. On behalf of Mintz Levin, I would like to thank the Court for its consideration of

this request.

Dated: April 29, 2015New York, NY

Sworn to before me this29th day of April, 2015

tary Public

JULIEANNE BARRETTONotary Public

Commonwealth of Massachusetts

My Commission Expires March 9, 2018

3

-kJMATTHEW C. HURLEY'

EXHIBIT 17

9/28/15, 10:25 PMGmail - FW: Zappin v. Comfort/Index No.: 301568/14

Page 1 of 2https://mail.google.com/mail/u/0/?ui=2&ik=24be2e76eb&view=pt&q=…s=true&search=query&msg=14d05658e6f81130&siml=14d05658e6f81130

Anthony Zappin <azappin@gmail.com>

FW: Zappin v. Comfort/Index No.: 301568/14

Lara Ott <lara@laraott.com> Wed, Apr 29, 2015 at 9:37 AMTo: "Anthony Zappin (azappin@gmail.com)" <azappin@gmail.com>

Anthony – My e-mail to the Court.

From: Lara Ott Sent: Wednesday, April 29, 2015 9:37 AMTo: Joan Levenson; 'Andrew Coyle'Cc: 'Robert M. Wallack'; 'Brittney Hershkowitz'; hcohen@crsslaw.comSubject: Zappin v. Comfort/Index No.: 301568/14

Dear Ms. Levenson and Mr. Coyle:

Given circumstances that occurred after our Friday, April 24 appearance, I write to request a conference call with the Court tofurther discuss the trial dates in this matter. I understand that today is the Part’s motion calendar but, as this is a matter of urgencyto Mr. Zappin and his employer, I write to respectfully to inquire as to whether the Court is able to accommodate our request for aconference call today with counsel. As I stated at the Court conference, Mr. Zappin has prior engagements and deadlines formatters he is working on at Mintz Levin which conflict with the current trial dates. Going forward on the current dates willprejudice both Mintz Levin and its client as well as place Mr. Zappin's continued employment at the firm in jeopardy.

Following the Court conference, I personally spoke with the IP Section Manager and the head of the New York IP practice atMintz Levin yesterday, April 29. They reiterated to me that Mr. Zappin is absolutely indispensable on a confidential project forthe firm’s client(s) that has a statutory deadline of July 15, 2015. The deadline cannot be moved by any court or administrativebody. Given the deadline, Mr. Zappin will be required to devote countless hours from May through July 15 to the preparation andcompletion of the project(s). Included in his time, Mr. Zappin will be required to travel for various client and expert meetings aswell as prepare voluminous filings during the currently scheduled dates.

Both the IP Section Manager and the head of New York IP practice expressed great concern about the trial dates and, while theyare willing to submit a written request through my firm to adjourn the dates, they are concerned as to whether the Court wouldconsider granting an adjournment and are unsettled by the resulting uncertainty.

Subsequent to the conversation with the Mintz Levin partners, Mr. Zappin learned that the partners were not only extremelyconcerned as to whether Mr. Zappin would be able to fulfill his obligations on the client matters but, that, absent an adjournmentin the very short term, his employment is now at risk.

9/28/15, 10:25 PMGmail - FW: Zappin v. Comfort/Index No.: 301568/14

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Given the above, I therefore request that the Court adjourn the current dates to secure Mr. Zappin's employment and to avoid anyundue prejudice to Mintz Levin and its clients. I would be grateful if the Court could make itself available for a conference calltoday to discuss trial dates, and I appreciate any courtesies which may be extended by the Court on this issue.

Respectfully submitted,

Lara Ott

Lara P. Ott, Esq.

Stein & Ott LLP | One Grand Central Place |305 Madison Avenue, 47th Floor | New York, New York 10165

Tel: (212) 867-7770 | Fax: (212) 867-8870

cc: (By E-mail)

Robert Wallack, Esq.

Brittney Hershkowitz, Esq.

Harriet Cohen, Esq.

EXHIBIT 18

10/27/15, 2:43 PMGmail - FW: Zappin Trial Dates

Page 1 of 2https://mail.google.com/mail/u/0/?ui=2&ik=24be2e76eb&view=pt&q=…s=true&search=query&msg=14d101ba2075f955&siml=14d101ba2075f955

Anthony Zappin <azappin@gmail.com>

FW: Zappin Trial Dates

Lara Ott <lara@laraott.com> Fri, May 1, 2015 at 11:32 AMTo: "Anthony Zappin (azappin@gmail.com)" <azappin@gmail.com>

Anthony – Please see below.

From: Harriet Cohen Sent: Friday, May 1, 2015 11:18 AMTo: jlevens@courts.state.ny.usCc: Lara Ott; Robert M. Wallack ('rwallack@wallackfirm.com'); 'Brittney Hershkowitz'; Robert Pagano; MaherlyManigaultSubject: Zappin Trial Dates

Dear Ms. Levenson and Counsel:

I take no position on Mr. Zappin’s request that all trial dates presently scheduled by this Courtbe adjourned sine die to dates after July 15th. I do apprise this Court that I am actually engagedduring August and in September in another matrimoinial trial in Nassau County Supreme Court.

Respectfully submitted,

Harriet N. Cohen

AFC

Harriet Newman Cohen, Esq.

Cohen Rabin Stine Schumann LLP

11 Times Square - 10th Floor

West 41st Street and Eighth Avenue

New York, NY 10036

Dir. Dial: (212) 512-0801

General Tel: (212) 512-0825

E-Fax: (212) 214-0330

General E-Fax: (212) 202-6100

10/27/15, 2:43 PMGmail - FW: Zappin Trial Dates

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E-Mail Address: hcohen@crsslaw.com

Website: www.crsslaw.com

This message and any attachments may contain confidential or privileged information and isonly for the use of the intended recipient of this message. If you are not the intended recipient,please notify the sender by return email and delete or destroy this and all copies of thismessage and all attachments. Any unauthorized disclosure, use, distribution or reproduction ofthis message or any attachments is prohibited and may be unlawful.

EXHIBIT 19

CSHtrN RASIN STINE SGHUMAfi{H LLFAttorneys at L,qw

7 Times $quare, 3S-'FlaorNew York, New York 1003S

Tel.r (2f2If,ll'081$Harriet Newrnan Cohenflonnie H. RabinMarlha Cohen $lineGretchen Beall $chumann.PaulC, KurlandTim Jarnesnmanfra-Gird Creegan*Evridiki PoumpouridisLindsav R. FfqltFJRobert Pagano, Legal Assistanl

*a[so.admltted in New Jersey

EY H+.NFFIon, Deborah A, Kaplan, J.S,C.Supreme Court of tlrs State of New YorkCounty ofNel York60 Centre Sheet, Fart 20, Courtroorn 540Nerv York, Neiv York 10007

Faxr {212}t0?"6100

Direct dial: 21?:512-081 2E-fulail address; brabi n@crssJaw,ccm

Septernber 10,2014

Re: Zappin.v, Comfortirxlsx No.301568/14

Dear Justice Kaplarr:

I arn tlre atforrley for the child Reid Zappin, The evidsntiary he*ring as to rvhetlrcrsupervised visitatiorr for the father shall be continued or disconthrned is scheduled to beghr orr

September l5'b. In colmecticn therervith, I respectfrrlly reque$t that fhe pflrties be directed to pnya $10,000 retainer to; Anron S. Mefiikin, M.D. (CV attached)

I l5 Ccnir*l Park West, Ste. l2New York, New York 10023, 212 - 988-6230

Dr. Melrikin is a boatd cet'rified lic*rrsecl psychirtlist nnd lliplornat, Arnerican Boaucl ofPsychiatry atrd Neurology. Dr. h,Ietrikin rvilt assist nre in rtry levicrv af Dr, Alan Ravitz's forcrrsic

ttpott aud otlrer nredical.le cords and sit at counsel table duringthe hcaring. Dr, Msfrikirr's cu$tomffry

hour{y charge for a 45 nrittute hour is $800. Dr. Metrikin lrns agreed to accept $?Off *n hanr for a 60

ttthrute hour in this case. I arn subnritting this lettsr to the Court with copies to both sides in

accordance rvith the provisions of the order appointing nre Reitl.Zappin's atforney.

Respectful ly subnr itted,

COHEN RABIN STINE SCFIUMANN LLP

By:/s/

FINC/so

ce: Robert Wallack, Hsq" (via enrail)

Anthorry Z*ppin, Esq, (,pru se){via enrail}

C:V\SAFPIN r'. COMFORFilsl'fflRS\COURng-r0,l4.rvpd

llaruiet Newman Colren

CURRLSIJLUIi4 VITAE - AARON $. METIiJKI.N'"iIII.I).

FJate of Birth: 09/1011965

Addrcss: ll5 Ccntral Par.k West

Srdte t2

New York. Nerv York

I 0s23

212 - 9886230

Place of Birth: Jolrannesburg. Soufh Af ica

EPUC.*.FIoNi

" 1983 Matriculation Certiticatn, King travid High School, Johannesburg

' 1990 M,D. University af the Witrvatersranrl Meelical $clrool, Johannesburg

fiouth Afi'ica

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' l99l "1992 lrtter"rrslrill at Groote Schuur l{ospital, Cape Torvrr, South Afric.a.ffistetrics

arrd Gynecology, Pediatric Surgery, Internal Medicine and Oncology* 1992-1993 MedicalResearch C*uncil, Cape Town, South Africa:

Past-irrternship Medical Research Councif Scholar

Senior House Officer at So*rerset l:lospital Out-patient I{lV clinic

' 1993-1996 Resident nncl in fhe Department of Psyehi*try et New York University Meclical

Center

' 1996-1997 Chief Resideut Departffierrt of Psy*hiatry, NYU Medical Center/Bellevue

blospital

" 1997-1999 Fellon'in the Division of Alcohol and Substance Abuse, Depar.tment ofP.*ychiatrl', NYU Medical Center:lBellevue Flospital. New York City

" 1997 - 20S7 NYU fuIedical Center, Psychoanalytic In*titute

HO.$PITAL AFPOINTMENT$ AND EM PLOYMSNT T

' 1998-1999 Acting fuIedical Director', Bellevue Hospital Outpatie*t Alcohol Clinic. 1999-2000 Clinicrrl Insnnctor, NYU Medical Center

Ilirector Methadorre Rehabi I itation Ilr ogram, Bellevue Flospital

Clittical Director Buplenorplrine / Networ{r Therapy rcseareh project

' 2000-2007 Director,. Consultation l,iaison Psyehiatry Service LHH

' l99S-20fi7 Pari-tinre private practice

" 2007- present Full-tirrre private practice

AC AD E{vI I -C_ .{ P PO -r NTM E NTS :

. I'B97-prc$ent Clinical Assistarrt Professor, NYU Medical Center

t IsE NS Il RE &1.r.* _C" S*T I F'ICA T I OI".{ :

" l99t South African Medical ancl Dental Courrcil. 1997 Ncw Ycr-k $rate License # 205490. 1999 Diplomat, Arnerican Board of Psychiatry and Neurology

' 2t07 Psychoanafyst, NYU Psychoanalytic lrrstitute

AWARD$r

" 1992 Post-inteffi.$hip Medical Research Coirncil Scholarship, South Afiica

" 1997 Excelletrce irr Medical.student Education Arvard. Department

of Psyclriatry. New York Ulriversity Medical Center

co M MrITS4 .#$fir$ N MnN T$ AI{D h.S AF, Erls H r p p o$rT r*Q Ng:. 1984 Student Coordinator'-Mutdersdrift Conrmunity Health Clhrirr* 1985 Hditor of tluride,medical students nelvspaper

" 1988 Ccorclirrator - National U*io* of $outh Af ican Studerrts Health Directive

' 1988 Intsrvierving Ccrnmittee for plospe*tive meclical students, University ofthe Witwaterrrand hi{eclical School, Johamresbutg, South Africa

. 1992 Regional Commitfee for Community Basecl FIIV l{onre Care in Cape

Town, South Africa'. 1994-1996 Class representativs to the NYU Departrnent of Fsychiatry Graduate

Education Steeriug Committee

' 1996-1997 Chief Rcsident NYU Departmerrt of Psychiatrl'/Bellevue l{ospital

l|f EIyIBES$$ I PS O F PRo FESS I ONAL ORG A.N I zATIo_r_.{s :

. 1994 Anrerican Medical Association

. 1994 Arnerioarr Fsychiatric Associatior!

. 1995 Bellevue-NYU Psychi*tric Society

. 1998 A*rerican Society of Addicticn Medicine

' 1998 Alrrerican Fsvchoanalvfic Association

TEACHI NG SXPERIEFLCil.:

' 1986-lqS8 Matlrcmatics atrd enriclurrent te.acher at PROTEC {a non profit

institution of infolrnal eclucation for blauk students).

Johannesburg, Sauth Afi'ica

1992-r993 Fourlh ycar merlical student AID$ serninar tutot', Urriversity

of Cape Torvn Medical School, South Africa.

1995-t999 l" arrd Znd year msdical student tutor in l{urnan Behavioral

Seiences ancl Psychapathology, NYU Medical Center.

1997-20fr7 PsychotheraFy and substance abuse treatrnefi supervisol for second

ancl third year tesitients in the flepathnent of Psychiatry at NYU Medical

Center

Z000-ltresent Consultation Liaison Fsychiatry supervisor for 3'd and 4tl'year residents i* the

Depa$nent of Psychiatry atNYU Medical Cerrter

2000-present Consultation Liaison Pslchiatry preceptor for 3'd year medical students in the

Deparhnent of Psychiatry at SLJNY Dorvnstate Medical Center

FISL.ISG.RAFHYTOrigin*l Reports;

fuIetri*in AS, Galanter M, Ccttsultatian - Liaisorr Psychiatry Database (2S00 Update) Substance Abuse

editor. Ceneral Flospital Psychiatry 1 999, 2 1 (6) z 496-497

fuletrikin AS, 7-,warettstein Mn Steinberg MH, Va* der Vyver En Maartens G, Wood k: I.t HIV IAJD,S n

p'imary rarc dise$se? Appropriale level,r oJ'autpatienl care tor patients rrftlr Ill.VlAIDS. AIfrS1995,9:619-623.

Metrikirr AS, Calanter M, $unt G, Dermatis H. ,scrnrrrrz*Iion, Anxiety, and depression in a drug-fi'ee

re s i de nt i a I t h e rupw { i c c on *nu nl ly.Subnritted fcr publ icatian 1 99 9.

Abstraetsl

Paper Frssentatioil to tire National }{orne llased Care Confelence hosted by the AIFIS unit of thc

Departtnent. of Health, South Africn, 1992. Tofl,ards horne eare,fbr persons u,ith AIfrS in South A.f ictt..

Metrikin A$, /-r,r'arcnstein fuI, Steinberg MH, A retlospectivo cjrffrt revierv of t 400 HIV infected

Ilatients at Sornerset Hospital, Di.rease progrecsior? and WHO staging of dis*ase,,.1.993.

Paper pteseirtatiotr to the World Association of Psychi*tric Rehabilitation Conferencs, New Yolk1995.?'he Trrtintng af Psychiatt'y Resident,r in Psychiatric Rshnbilitation.

3

EXHIBIT 20

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Aaron Metrikin, M.D.Psychiatrist, Addlction Specialist, Psychoanalyst : 1 15Central ParkWest, Suite 12New York, New York : Medical practice

cur€nt Lmox Hill Hospital, Aaron S. Metrikin, M.D., New yorkUniveBity School oi Medicine

9rclious Lenox Hill Hospitel, NYU Langone rvledi€l Oenter/E€lleweHospital

gduqiloe lnstitute for psychoenalytie Edu€tion.Affiliated wirh Nyu' School ofMedicine

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specialisi in ev8luation snd treatment of anxiety, deprdsdon, mood, cognitive and ?1, addic{ion disordersincluding alcohol, cocaine, opiate, amphetamine, prescriplion drug ibuse and sex addiction. l providecomprehensive assessments ofthe biological and psyghosoclal issues that may result in stress, conflict,ilitepersonal problemq depressioh, work rdeted dimculties and substance use.disorders. Stde ofthe anpsychopharmacology as well as intensivE and foused lalk therapy are the comerstones of my practice.

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Attendln g PsychiatristLenox Hill HospitalJuly 2000 - Preseni (f4 years 10 montns) I Greater New york Gfty Area

Voluntary FscuttyTeaching Siafffor Residents and Medieat Studens in the Depanment of psycftiatry

OwnerAaron.S, Mekikin, M.D.July 1397 - Present (1? years 10 monthsi | 115 Central park West Suite 12, New york, New yo*Highly expenienced pslchiatdst, addictiofi spedalist and pslichoanalysl in private practice on Upper l bstSide ot Manhattan. Speclalist services include outpatient and in-patient deloxification, interventions,Buprenorphine managemenl for opioid dependence. psydtodynamlc the€py, couples therapy, drugcounseling and relapse prevention. Close to all publiD transporlation.

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Clinical Assistant Professor, Depaftment of psychiatryNew York University School of Medicine1997 - Preseni (18 yearsl I NewYork, Newyork

Attending Psy*liatrisi.on Voluntary Fadlty

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Director, Consultafion Llaison Seruics, Department of psyehiatry {ffih.;r*#.i;-Lenox Hill HospitalJuly2000 -June2007 f/ years).1 lrleurYork City

ltipgtor, Buprenorphine Treahnent and Research programNYU Langone Madical Center/Bellevue HospitalJanuary 1999 -June 2000 (1 ).ear 6 monlhs)

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^6. Education

lnstitute fqr Psychoanalytic Education Affiliated with NytJ school of MeclicinePsychoanalyst Psychoanalysis1996 - 2007

Activlties and Societies: Amerlcan Psychoanal$ic Asso6iati6n

NewYork Universify School of MedicineFellowship, Addiction PsychiabyI 997 - 1999

Activitles and Societles: Diredor, Oulpatient Alcohol Clinic - Bellevue Hospital .1999

New York Unfuersity Sihool of MedicineResident, Psychiatry1993 - 1997.

Adivrues and Societies: Chief Resident. 1996f

U niversity Of Cape Town, G roote S ch uur H ospitallntemship, Medicine, Surgery, Pediatrics and OBGYN19e0- 1girl

. University of the Witr,vatersrairdMedical Doctor, Msdicine and Surgeryrgas - tgsg

A6livities and Socielies: National Union of Sorrth Affican Students, Medical Students council. Chlef EditorAuricle, Medical Student Newspaper

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EXHIBIT 21

Aaron Metrikin, M.D. itPsychiatrist, Addiction Specialist, connaeti(

Psychoanalyst : 115 Central park West, Suite12f{ew Yoft, New York l fs{sdical pra{tice

Current Lenox Hill Ho$pital, Aaron S. Mekikin, M.D., New yorkUniversity School of Medjcine

Previous Lenox Hill Hospitai, NyU Langone Medical Cente|/BellevueHosoital

Eduoation Institute for Psychoanatytic Education Afiiliated with NyUSchool ofMedicinb

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Attending Psychiatrist Atu#'iu, rerurr*;r,

Lenox Hill Hospital se{6{{"tJ ++saur*r

July 2$iltl * pre$enl {1S years 3 m$fit*$} I Sre(| ter Ne$r york City Ar*a

Voluntary FacultyTeaching staff for Residents and Medlcal students in the Department of p$ychiatry

OwnerAaron S. Metrikin, M.O.Juiy1997*Fressnl{18ysafs2n1oilllr$) lllscent{al perkwesiliuitei:.Newyork.h:ewyo&

Highly experienced psychiatrist, addiction specialist and psychoanalyst in private practice on UpperWest Side of Manhattan. $pecialist $ervices inciude oulpatient ar.rd in-patient detoxification,interventions, Buprenorphine management for opioid dependence, psychodynamic therapy, couplestherapy, drug counseling and reiapse prevention. close to all public transportaiion.

Smvu

Director, Consultation Liaison Services, Department of psychiatryLenox Hill HospitalJu'y2000* Ju*e20S? {?ye*rsi I NewysrkCity

Director, Buprenorphine Treatment and Research programNYU Langone Medical Center/Bellevue HospitalJanuery 1 BSS * June 2000 {1 yeaf S rnanthci

Ii:-"1fflt $ __t_._y*9!otn"iupv. j -Adolescents { crisis Intervention } Famiry Therapy

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Institute for Psychoanalytic Education Affiliated with Nyu school ofMedicinePsychoanalyst, Psychaanalysis1 S$S - ?007

Activities and Societies: American psychoanalytic Associat!on

New York University School of MedicineFellowship, Addiction Psychiairy'l ssZ * 19S9

Activities and societies: Director, outpatient Alcohol clinic - Bellevue Hospital 1999

New York University School of MedicineResident, Psychiatry1993- 19S7

Aciivities and Societies: Chief Resident. ,1S96/7

University Of Cape Town, Groote Schuur Hospitallnternship, Medicine, Surgery, pediatr:c$ and OBGyN1SS0- 1SS1

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EXHIBIT 22

American Psychiatric Association

The Principles of Medical Ethics

With Annotations Especially Applicable to Psychiatry

2013 Edition

Copyright © 2010 American Psychiatric Association

ALL RIGHTS RESERVED

Manufactured in the United States of America

08 07 06 3 2 1

The Principles of Medical Ethics

2013 Edition

(Previous editions 1973, 1978, 1981, 1984, 1985, 1989, 1992, 1993, 1995, 1995

Revised, 1998, 2001, 2001 Revised, 2006, 2008, 2009. 2009 Revised, and 2010

American Psychiatric Association

1000 Wilson Boulevard #1825

Arlington, VA 22209

1

THE PRINCIPLES OF MEDICAL ETHICS

With Annotations Especially Applicable to Psychiatry

2013 Edition In 1973, the American Psychiatric Association (APA) published the first edition of The Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry. Subsequently, revisions were published as the APA Board of Trustees and the APA Assembly approved additional annotations. In July of 1980, the American Medical Association (AMA) approved a new version of the Principles of Medical Ethics (the first revision since 1957), and the APA Ethics Committee1 incorporated many of its annotations into the new Principles, which resulted in the 1981 edition and subsequent revisions. This version includes changes to the Principles approved by the AMA in 2001.

Foreword

ALL PHYSICIANS should practice in accordance with the medical code of ethics set forth in the Principles of Medical Ethics of the American Medical Association. An up-to-date expression and elaboration of these statements is found in the Opinions and Reports of the Council on Ethical and Judicial Affairs of the American Medical Association.2 Psychiatrists are strongly advised to be familiar with these documents.3

However, these general guidelines have sometimes been difficult to interpret for psychiatry, so further annotations to the basic principles are offered in this document. While psychiatrists have the same goals as all physicians, there are special ethical problems in psychiatric practice that differ in coloring and degree from ethical problems in other branches of medical practice, even

1The committee included Herbert Klemmer, M.D., Chairperson, Miltiades Zaphiropoulos, M.D., Ewald Busse, M.D., John R. Saunders, M.D., and Robert McDevitt, M.D. J. Brand Brickman, M.D., William P. Camp, M.D., and Robert A. Moore, M.D., served as consultants to the APA Ethics Committee.

2Current Opinions with Annotations of the Council on Ethical and Judicial Affairs, Chicago, American Medical Association, 2002–2003.

3Chapter 7, Section 1 of the Bylaws of the American Psychiatric Association (May 2003 edition) states, “All members of the Association shall be bound by the ethical code of the medical profession, specifically defined in the Principles of Medical Ethics of the American Medical Association and in the Association’s Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry.” In interpreting the Bylaws, it is the opinion of the APA Board of Trustees that inactive status in no way removes a physician member from responsibility to abide by the Principles of Medical Ethics.

2

though the basic principles are the same. The annotations are not designed as absolutes and will be revised from time to time so as to be applicable to current practices and problems.

Following are the AMA Principles of Medical Ethics, printed in their entirety, and then each principle printed separately along with an annotation especially applicable to psychiatry.

Principles of Medical Ethics American Medical Association

Preamble

The medical profession has long subscribed to a body of ethical statements developed primarily for the benefit of the patient. As a member of this profession, a physician must recognize responsibility to patients first and foremost, as well as to society, to other health professionals, and to self. The following Principles adopted by the American Medical Association are not laws, but standards of conduct which define the essentials of honorable behavior for the physician.

Section 1 A physician shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights.

Section 2 A physician shall uphold the standards of professionalism, be honest in all professional interactions, and strive to report physicians deficient in character or competence, or engaging in fraud or deception, to appropriate entities.

Section 3 A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient.

Section 4 A physician shall respect the rights of patients, colleagues, and other health professionals, and shall safeguard patient confidences and privacy within the constraints of the law.

Section 5 A physician shall continue to study, apply, and advance scientific knowledge, maintain a commitment to medical education, make relevant information available to patients, colleagues, and the public, obtain consultation, and use the talents of other health professionals when indicated.

3

Section 6 A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care.

Section 7 A physician shall recognize a responsibility to participate in activities contributing to the improvement of the community and the betterment of public health.

Section 8 A physician shall, while caring for a patient, regard responsibility to the patient as paramount.

Section 9 A physician shall support access to medical care for all people.

Principles with Annotations

Following are each of the AMA Principles of Medical Ethics printed separately along with annotations especially applicable to psychiatry.

Preamble The medical profession has long subscribed to a body of ethical statements developed primarily for the benefit of the patient. As a member of this profession, a physician must recognize responsibility to patients first and foremost, as well as to society, to other health professionals, and to self. The following Principles adopted by the American Medical Association are not laws, but standards of conduct which define the essentials of honorable behavior for the physician.4

Section 1 A physician shall be dedicated to providing competent medical care with compassion and respect for human dignity and rights.

1. A psychiatrist shall not gratify his or her own needs by exploiting the patient. The psychiatrist shall be ever vigilant about the impact that his or her conduct has upon the boundaries of the doctor–patient relationship, and thus upon the well-being of the patient. These requirements become particularly important because of the essentially private, highly personal, and sometimes intensely emotional nature of the relationship established with the psychiatrist.

2. A psychiatrist should not be a party to any type of policy that excludes, segregates, or demeans the dignity of any patient because of ethnic origin, race, sex, creed, age, socioeconomic status, or sexual orientation.

4Statements in italics are taken directly from the American Medical Association's Principles of Medical Ethics.

4

3. In accord with the requirements of law and accepted medical practice, it is ethical for a physician to submit his or her work to peer review and to the ultimate authority of the medical staff executive body and the hospital administration and its governing body. In case of dispute, the ethical psychiatrist has the following steps available:

a. Seek appeal from the medical staff decision to a joint conference committee,

including members of the medical staff executive committee and the executive committee of the governing board. At this appeal, the ethical psychiatrist could request that outside opinions be considered.

b. Appeal to the governing body itself.

c. Appeal to state agencies regulating licensure of hospitals if, in the particular state,

they concern themselves with matters of professional competency and quality of care.

d. Attempt to educate colleagues through development of research projects and data

and presentations at professional meetings and in professional journals.

e. Seek redress in local courts, perhaps through an enjoining injunction against the governing body.

f. Public education as carried out by an ethical psychiatrist would not utilize appeals

based solely upon emotion, but would be presented in a professional way and without any potential exploitation of patients through testimonials.

4. A psychiatrist should not be a participant in a legally authorized execution.

Section 2 A physician shall uphold the standards of professionalism, be honest in all professional interactions and strive to report physicians deficient in character or competence, or engaging in fraud or deception to appropriate entities.

1. The requirement that the physician conduct himself/herself with propriety in his or her profession and in all the actions of his or her life is especially important in the case of the psychiatrist because the patient tends to model his or her behavior after that of his or her psychiatrist by identification. Further, the necessary intensity of the treatment relationship may tend to activate sexual and other needs and fantasies on the part of both patient and psychiatrist, while weakening the objectivity necessary for control. Additionally, the inherent inequality in the doctor-patient relationship may lead to exploitation of the patient. Sexual activity with a current or former patient is unethical.

5

2. The psychiatrist should diligently guard against exploiting information furnished by the patient and should not use the unique position of power afforded him/her by the psychotherapeutic situation to influence the patient in any way not directly relevant to the treatment goals.

3. A psychiatrist who regularly practices outside his or her area of professional competence should be considered unethical. Determination of professional competence should be made by peer review boards or other appropriate bodies.

4. Special consideration should be given to those psychiatrists who, because of mental illness, jeopardize the welfare of their patients and their own reputations and practices. It is ethical, even encouraged, for another psychiatrist to intercede in such situations.

5. Psychiatric services, like all medical services, are dispensed in the context of a contractual arrangement between the patient and the physician. The provisions of the contractual arrangement, which are binding on the physician as well as on the patient, should be explicitly established.

6. It is ethical for the psychiatrist to make a charge for a missed appointment when this falls within the terms of the specific contractual agreement with the patient. Charging for a missed appointment or for one not canceled 24 hours in advance need not, in itself, be considered unethical if a patient is fully advised that the physician will make such a charge. The practice, however, should be resorted to infrequently and always with the utmost consideration for the patient and his or her circumstances.

7. An arrangement in which a psychiatrist provides supervision or administration to other physicians or nonmedical persons for a percentage of their fees or gross income is not acceptable; this would constitute fee splitting. In a team of practitioners, or a multidisciplinary team, it is ethical for the psychiatrist to receive income for administration, research, education, or consultation. This should be based on a mutually agreed-upon and set fee or salary, open to renegotiation when a change in the time demand occurs. (See also Section 5, Annotations 2, 3, and 4.)

Section 3 A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient.

1. It would seem self-evident that a psychiatrist who is a law-breaker might be ethically unsuited to practice his or her profession. When such illegal activities bear directly upon his or her practice, this would obviously be the case. However, in other instances, illegal activities such as those concerning the right to protest social injustices might not bear on either the image of the psychiatrist or the ability of the specific psychiatrist to treat his or her patient ethically and well. While no committee or board could offer prior assurance that any illegal activity would not be considered unethical, it is conceivable that an individual could violate a law without being guilty

EXHIBIT 23

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

ANTHONY ZAPPIN, Plaintiff,

Index Nos. 301568/2014 and 3 5007 5/2014

M against -

CLAIRE COMFORT, Defendant.

UPDATED WITNESS LIST SUBMITTED BY ATTORNEY FOR THE CHILD

MARCH 3, 2015

The Attorney for the Child submits the following list of witnesses, whom she may call at

trial, in the above captioned action, scheduled to commence Friday, March 6, 2015:

Claire Comfort, plaintiff; Anthony Zappiu, defendant; CFS Supervisors (on stand 9/15/14); Parents of Ms. Comfort; Parents of Mr. Zappin; Dr. Alan Ravitz (neutral forensic); Robert \V. Brooks, M.D. (Mr. Zappin's personal psychiatrist); Aaron S. Mctrjkln, M.D. (board-certified psychiatrist called to assist Af'C as permitted by Court

Order); Amy De Mattia, 1"1.D. (pediatrician; Westside Pediatrics); Lilly Pavlinovic, Ph.D. (Ms. Comfort's therapist); Amanda C. Melendez (nanny).

The Attorney for the Child reserves the right to call additional witnesses that are deemed

necessary, including rebuttal witnesses, if necessary, at the trial of this matter.

Respectfully submitted:

I '

HAj~EWMAN COHEN ATTORNEY FOR THE CHILD

EXHIBIT 24

EXHIBIT 25

10/27/15, 2:50 PMGmail - Zappin v. Comfort - 301568-14

Page 1 of 1https://mail.google.com/mail/u/0/?ui=2&ik=0f70d525f4&view=pt&q=t…&qs=true&search=query&msg=14f74a4d139daa5f&siml=14f74a4d139daa5f

Anthony Zappin <anthony.zappin@gmail.com>

Zappin v. Comfort - 301568-14

Timothy Corbo <tcorbo@nycourts.gov> Fri, Aug 28, 2015 at 10:10 AMTo: Anthony Zappin <anthony.zappin@gmail.com>, "Robert M. Wallack" <rwallack@wallackfirm.com>,"HCohen@crsslaw.com" <HCohen@crsslaw.com>, David Schorr <deschorr@schorr-associates.com>,"mbelmont@wallackfirm.com" <mbelmont@wallackfirm.com>

A"en%on'counsel,

'

Both'open'mo%ons,'sequences'19'and'21'will'be'marked'fully'submi"ed'on'9/2'and'9/9,'respec%vely.''No'oralargument'is'required'and'accordingly,'both'appearances'are'hereby'cancelled.''All'briefing'schedules'willremain'unchanged.''The'Judge'will'render'wri"en'decisions'on'both'mo%ons'based'on'the'papers.

'

Thank'you.

'

Timothy'T.'Corbo,'Esq.

Principal'Law'Clerk

Jus%ce'Ma"hew'F.'Cooper

NY'State'Supreme'Court

60'Centre'Street,'Room'519

New'York,'N.Y.'10007

Chambers:'646-386-5696

Fax:'212-295-4921

'

'

EXHIBIT 26

10/27/15, 2:52 PMGmail - Zappin v. Comfort, Index No. 301568/14

Page 1 of 3https://mail.google.com/mail/u/0/?ui=2&ik=0f70d525f4&view=pt&q=H…qs=true&search=query&msg=14fb39227f086cb2&siml=14fb39227f086cb2

Anthony Zappin <anthony.zappin@gmail.com>

Zappin v. Comfort, Index No. 301568/14

Harriet Cohen <HCohen@crsslaw.com> Wed, Sep 9, 2015 at 3:21 PMTo: "tcorbo@courts.State.ny.us" <tcorbo@courts.state.ny.us>Cc: "Robert M. Wallack ('rwallack@wallackfirm.com')" <'rwallack@wallackfirm.com'>, "David E. Schorr (deschorr@schorr-associates.com)" <deschorr@schorr-associates.com>, Anthony Zappin <anthony.zappin@gmail.com>, Robert Pagano<RPagano@crsslaw.com>, Maherly Manigault <MManigault@crsslaw.com>

Dear Mr. Corbo:

I am the Attorney for the Child in the proceeding of Zappin v. Comfort, Index No. 301568/14.

I enclose herewith a scanned copy of the AFC’s Reply Affirmation in Further Support of the AFC’s Order to ShowCause with respect to Dr. Metrikin, which is being served on the parties today and will be filed with the Court.

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I send this email as well to bring a procedural matter to the Court’s attention.

It involves two sets of late and unauthorized papers that were mailed to my office.

On September 8, 2015, my office received two sets of papers apparently mailed to my offices by the plaintiff AnthonyZappin.

The envelope I received containing both sets of papers has a “Priority Mail 1-Day” label on it, dated September 3,2015. However, the envelope did not arrive at my office until September 8th. It is not only that they are “late.” Theyare also wholly unauthorized, denoted as they are, as “surreplies.”

The first set of papers that was contained in the envelope is entitled, “Sur-reply Affidavit of Anthony Zappin,” in whichMr. Zappin states that he submits in response to my September 2, 2015 reply papers on my motion to quash Mr.Zappin’s subpoena duces tecum (Mot. Seq. No. 19).

The second set of papers that was contained in envelope is entitled, “Supplemental Affidavit of Anthony Zappin inSupport of Cross-Motion,” which Mr. Zappin states he submits in support of his September 1, 2015 Cross-Motion to

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Mot. Seq. No. 21.

According to the stamps on the copies of the papers I received, Mr. Zappin filed these two sets of papers with theCourt on September 3rd. I did not know of their existence, and I did not receive them until September 8th.

Not only is Mr. Zappin not authorized to submit any “Sur-reply” or “Supplemental Affidavit,” as he does not have priorpermission of the Court to do so, but also, his papers are untimely.

He served his “Supplemental Affidavit” in support of his cross-motion (Mot. Seq. 21), so that I have received it lessthan one day before the return date of the motion (September 9th).

It is clear that Mr. Zappin did so in order to continue to bombard me with papers as well as to prevent me from havingadequate time to review and respond to papers.

In addition, Mr. Zappin served his “Sur-reply Affidavit” on Mot. Seq. No. 19, even though the Court’s email on August31st made clear that “all papers relative to MS 19 are to be received in Part 51 by 4:30 pm on Wednesday,September 2, 2015,” and that “motion sequence 19 will be deemed fully submitted by 4:30 pm on Wednesday,September 2, 2015.”.

The unauthorized and late papers on MS 21 should also be rejected.

For the foregoing reasons, I request that the Court reject and not consider Mr. Zappin’s unauthorized and late papersand submit that we will not be serving or filing any response to these two “surreplies” unless hereafter directed to doso by Justice Cooper.

Respectfully submitted,

Harriet Newman Cohen

Attorney for the Child

Harriet Newman Cohen, Esq.

Cohen Rabin Stine Schumann LLP

11 Times Square - 10th Floor

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