Scopelliti v. Town of New Castle

In an action to recover damages and for injunctive relief arising out of the defendants’ failure to approve a stipend in addition to the plaintiffs salary for 1995, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), entered October 7, 1996, as granted the defendants’ motion to dismiss the complaint for failure to state a cause of action.

Ordered that the order is affirmed insofar as appealed from, with costs; and it is further,

Ordered that counsel for the respective parties are directed to show cause why an order should not be made and entered imposing such sanctions or costs, if any, against the plaintiff and his counsel pursuant to 22 NYCRR 130-1.1 (c) as this Court may deem appropriate, by filing an original and four copies of their respective affirmations or affidavits on that issue in the office of the Clerk of this Court and serving one copy of the same on each other on or before December 1, 1997.

This is the plaintiffs second attempt at recovering the same relief from essentially the same defendants, under the same factual scenario and based upon the same legal theories. The plaintiffs first action (hereinafter Action No. 1) concluded on December 5, 1995, when the Supreme Court, Westchester County, granted the defendants’ motion for summary judgment and dismissed the complaint on its merits. This Court affirmed (see, Scopelliti v Town of New Castle, 235 AD2d 469). While the appeal in Action No. 1 was pending, the plaintiff commenced the instant action (hereinafter Action No. 2). The defendants moved, among other things, to dismiss the complaint in Action No. 2 pursuant to CPLR 3211 for failure to state a cause of action.

The Supreme Court granted that branch of the motion, and we again affirm.

In his brief on this appeal the plaintiff raises the same arguments as on his prior appeal, all of which were considered and expressly rejected by this Court (see, Scopelliti v Town of New Castle, supra). The instant appeal was perfected in May 1997, nearly five months after this Court affirmed Justice Coppola’s order in Action No.l. The plaintiff makes no attempt to distinguish this action from the prior action or to explain why he has filed an appeal that is patently without merit, his arguments having already been rejected by this court. There being no obvious good-faith basis for the prosecution of this appeal, sanctions may be warranted. Miller, J. P., Pizzuto, Altman and Goldstein, JJ., concur.