     18‐1545
     Zappin v. Cooper


                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.


 1         At a stated term of the United States Court of Appeals for the Second
 2   Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
 3   Square, in the City of New York, on the 15th day of May, two thousand nineteen.
 4
 5   PRESENT:
 6              DENNIS JACOBS,
 7              PIERRE N. LEVAL,
 8              CHRISTOPHER F. DRONEY,
 9                    Circuit Judges.
10   _____________________________________
11
12   Anthony Jacob Zappin,
13
14                       Plaintiff‐Appellant,
15
16                 v.                                            18‐1545
17
18   Matthew F. Cooper, a Justice of the Supreme Court of
19   New York, in his official capacity,
20
21                    Defendant‐Appellee.
22   _____________________________________
1   FOR PLAINTIFF‐APPELLANT:                    Anthony Jacob Zappin, pro se,
2                                               Huntington, WV.
3
4   FOR DEFENDANT‐APPELLEE:                     Steven C. Wu, Deputy Solicitor
5                                               General, Seth M. Rokosky, Assistant
6                                               Solicitor General, for Letitia A.
7                                               James, Attorney General of the State
8                                               of New York, New York, NY.
9
           Appeal from a judgment of the United States District Court for the Southern
    District of New York (Failla, J.).

         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
    ADJUDGED, AND DECREED that the judgment of the district court is
    AFFIRMED.

           Appellant Anthony Zappin, pro se, sued Justice Matthew Cooper, a state
    matrimonial judge, for defamation, tortious interference, intentional infliction of
    emotional distress, and prima facie tort under state law, and for denial of a fair
    trial under 42 U.S.C. § 1983. Zappin alleged that Cooper disseminated a
    sanctions decision that contained false, malicious, and improper factual findings,
    which thus caused him to lose his job and denied him a fair trial during his child
    custody case before Cooper. The district court dismissed the amended complaint
    on collateral estoppel grounds because the factual findings in the sanctions
    decision that Zappin alleged were false had already been litigated and affirmed
    on appeal. We assume the parties’ familiarity with the underlying facts, the
    procedural history of the case, and the issues on appeal.

           “We review the grant of a motion to dismiss de novo, accepting as true all
    factual claims in the complaint and drawing all reasonable inferences in the
    plaintiff’s favor.” Fink v. Time Warner Cable, 714 F.3d 739, 740–41 (2d Cir. 2013).

           Federal courts apply New York collateral estoppel law to New York state
    court judgments. See Hoblock v. Albany Cty. Bd. of Elections, 422 F.3d 77, 93 (2d
    Cir. 2005). “[C]ollateral estoppel precludes a party from relitigating an issue
    which has previously been decided against him in a proceeding in which he had a

                                            2
fair opportunity to fully litigate the point,” when (1) “the identical issue
necessarily must have been decided in the prior action and be decisive of the
present action, and [(2)] the party to be precluded from relitigating the issue must
have had a full and fair opportunity to contest the prior determination.”
Kaufman v, Eli Lilly & Co., 482 N.E.2d 63, 67 (N.Y. 1985) (internal quotation
marks omitted); see also Vargas v. City of New York, 377 F.3d 200, 205–06 (2d Cir.
2004). Zappin is collaterally estopped from relitigating Cooper’s factual findings
in the sanctions decision.

      (1) Identity of the Issues. The factual findings in Cooper’s sanctions
decision were actually litigated in the course of motions by Harriet Newman
Cohen, the attorney for the child, and the cross‐motion by Zappin to disqualify
Cohen.

     As the First Department ruled, the sanctions decision was “amply
supported by the record,” and Zappin’s procedural arguments were meritless.
Zappin v. Comfort, 49 N.Y.S.3d 6, 6 (N.Y. App. Div. 1st Dep’t 2017).

       (2) Full and Fair Opportunity. Zappin argues that he was given no notice
that Justice Cooper was considering sanctions or that he would make findings
about issues beyond the scope of Cohen’s motions. This argument is meritless.
Cohen requested sanctions in her initial motion papers and in her reply; and
Zappin litigated the issues in the trial court and on appeal.

        Zappin argues that the district court erred by relying on the fact that
Cooper presided over the divorce action. But it is not error for the district court
to consider Cooper’s familiarity with Zappin’s pattern of behavior. See Curry v.
City of Syracuse, 316 F.3d 324, 332 (2d Cir. 2003) (noting the “the realities of the
litigation” are relevant to the determination whether a party had a full and fair
opportunity to litigate an issue (quoting Kosakow v. New Rochelle Radiology
Assocs., P.C., 274 F.3d 706, 734 (2d Cir. 2001))).

      Zappin argues that Cooper never warned him that he could be subjected to
sanctions. However, the papers attached to Cohen’s motions reflect Justice
Cooper’s previous consideration of sanctions for Zappin’s persistent

                                         3
noncompliance with court orders, and repeated warnings for Zappin to desist
from his harassing and unprofessional conduct.

      Zappin argues that Cooper was biased against him and fabricated his
factual findings. The judicial review procedure in the First Department ensured
that Zappin had a fair opportunity to litigate the factual issues and protect his
procedural rights. See Kremer v. Chem. Const. Corp., 456 U.S. 461, 484–85
(1982).

      Zappin had a full and fair opportunity to challenge the state court’s
findings in his direct appeal; he cannot relitigate these issues in federal court.
Accordingly, Zappin fails to state any claim premised on the alleged falsity or
impropriety of the findings.

      We have reviewed the remainder of Zappin’s arguments and find them to
be without merit. For the foregoing reasons, the judgment of the district court is
AFFIRMED.

                                       FOR THE COURT:
                                       Catherine O’Hagan Wolfe, Clerk of Court




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