SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

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ANTHONY ZAPPIN,
Index No. 301568/14

Plaintiff,

AFFIDAVIT OF
ANTHONY ZAPPIN

- against CLAIRE COMFORT,

Mot. Seq. #27

Defendant.
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STATE OF NEW YORK
COUNTY OF NEW YORK

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: ss
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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 Courts
September 18, 2015 decision; (iii) a stay of the Courts 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.

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 childs
parents, but he placed unnecessary public attention on the child and divulged sensitive
information about the childs 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 Coopers 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 postpartum depression and substance dependence abducted our four (4) week old child from
Washington, DC to Tacoma, WA. Ms. Comforts 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).

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. Comforts 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. Comforts 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. Comforts photographs are inconsistent, and in
many cases contradictory, with her various allegations of domestic abuse.
Further, having examined Ms. Comforts 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 litigants career and harmed the child based
falsified photographs as it is no mystery why Ms. Comfort refuses to produce them.

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

Justice Deborah Kaplan signed a Judicial Subpoena Duces Tecum on September 4, 2014
directing production of the digital copies of the photographs. After Ms. Comforts 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.

Moreover, the evidence in this case unquestionably refutes Ms. Comforts 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.
Comforts 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. Comforts 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
4

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-andover again by her father. (See Ex. 6, Sept. 23, 2014 Text Message from B. Comfort (I promise
you that Im going to make you feel pain .).)
This makes Justice Coopers 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 Coopers 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 COURTS APPARENT JUDICIAL MISCONDUCT IN THIS MATTER

A.

Justice Coopers 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 NYLJs 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
5

decision in the New York County Clerks 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 Coopers 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 Coopers 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 persons 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 Coopers Unlawful Assignment to This Matter

Contrary to Justice Coopers 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 Clerks 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.

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 Kaplans
docket. (See Ex. 10, Spreadsheet of Justice Kaplans Reassigned Cases.) Moreover, out of over
120 cases transferred from Justice Kaplans 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
Coopers 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.

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 Kaplans cases.

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 childs parents, is unfit to make a determination as to the childs 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 judges 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 childs 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 childs 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)
8

(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 Coopers
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 Coopers 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 judges adjudicative capacity
that commits the judge with respect to an issue in the proceeding . 22 NYCRR 100.3(E)(1)(f). Here,
Justice Coopers 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.

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 COOPERS ASSERTION, THE RECORD IS

CLEAR THAT PLAINTIFF HAS NOT DELAYED THIS MATTER
In the September 18 Decision, Justice Coopers 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 Coopers 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. OROURKE: -- and March the 5th on the books for custody .) Contrary to the
parties agreement, on January 2014, Ms. Comforts counsel, Matthew Andelman of Delaney
10

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

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 its 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. Well 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.)

11

(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 Coopers September 18
12

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 dont 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 Cohens 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 plaintiffs request.
(September 18 Decision at 7-8 (emphasis added).)

Justice Coopers 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 Courts 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.

13

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 wifes 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 Cohens request and vacated the
April trial dates.11 (See Mar. 5, 2015 Order at 3.)
E.

Mintz Levins 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 Courts 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 Courts 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

14

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 firms 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 Courts 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.
Zappins 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 clients 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. Zappins
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 firms client and the firm.

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

15

(Ex. 16, Apr. 29, 2015 Aff. of Matthew Hurley.) The Court adjourned trial noting Mr. Hurleys
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:
Plaintiffs 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 ORoukes signature on the Consent

16

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 Email 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 plaintiffs fathers name. Illustrative of these postings, and
indicative of the whole nature of the enterprise, are the following messages:
Harriet. Youre 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.
Comforts 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.

17

(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 Courts 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 Courts 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 Coopers 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
18

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 Courts statements
and factual conclusions are a clear abuse of discretion. Never once did the Court hold a factfinding hearing or provide any opportunity to respond to its factual recitations in the September
18 Decision. And, the Courts 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 Judges 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 Judges finding was improper and amounted to a
disciplinary sanction undermining the attorneys professional reputation and standing without a

19

hearing. See Ford Motor Co., 653 F.3d at 305. In vacating the Magistrate Judges decision, it
noted:
It is clear that the order directly undermines Coliannis professional reputation
and standing in the community. That is far from an insignificant affront. A
lawyers reputation is one of his/her most important professional assets It is all
but inevitable that the magistrate judges order has adversely impacted Colianis
reputation, particularly in a small legal community such as the Virgin Islands.
Moreover, the reputational harm that Colianni has suffered is magnified by the
judges 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 Courts September 18 Decision has imposed significant
harm to my professional reputation as demonstrated by the loss of my employment, the apparent
target of Justice Coopers 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 Courts 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 Coopers 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 physicians most valuable asset: his license to
practice medicine.).)

20

Given the Courts 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 factfinding 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 Courts Factual Conclusions for the Sanction are Erroneous

The Courts 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 Metrikins 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. Metrikins 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.)

21

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. Metrikins
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 Cohens 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 Courts assertion, the only reason
for the dismissal of the complaint was the OPMCs 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
22

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 AFCs 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)
23

([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 AFCs 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 Cohens 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 Cohens application for sanctions (Mot. Seq. #21). (See Ex. 25, Aug. 28, 2015 E-mail

15

AFC Harriet Cohens request for sanctions was buried at the end of her reply papers and
provided virtually no argument as to why sanctions should be imposed.

24

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 Cohens 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 Cohens 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 Cohens 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 Cohens
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 Cohens 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.

25

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.

26

EXHIBIT 1

Gmail - Motion for Interim Relief

10/27/15, 1:42 PM

Anthony Zappin <anthony.zappin@gmail.com>

Motion for Interim Relief

Anthony Zappin <anthony.zappin@gmail.com>
Tue, Oct 27, 2015 at 2:08 AM
To: 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 presented
Wednesday October 28 at 2:30 p.m.
Anthony

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

Page 1 of 1

EXHIBIT 2

EXHIBIT 3

EXHIBIT 4

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5/27/2014

EXHIBIT 5

EXHIBIT 6

EXHIBIT 7

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK: PART 51
-----------------------------------------------------------------------X
ANTHONY ZAPPIN,
Index No. 301568/14
Mot. Seq. Nos. 19 and 21
Plaintiff,
-against-

DECISION AND ORDER

CLAIRE COMFORT,
Defendant.
----------------------------------------------------------------------X
For 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, LLP
194 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 Childs Order to Show Cause,
Affirmation, Exhibits; (2) Plaintiffs Affidavit in Opposition, Exhibits; (3) Attorney for the
Childs Reply Affirmation, Exhibits; (4) Plaintiffs 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 Childs Order to Show Cause,
Affirmation, Exhibits; (2) Plaintiffs Notice of Cross-Motion, Affidavit, Exhibits; (3) Plaintiffs
Affidavit in Opposition and Exhibits; (4) Plaintiffs Supplemental Affidavit; (5) Attorney for the
Childs Reply Affirmation; (6) Plaintiffs 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 Courts 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 Womens 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 plaintiffs 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 plaintiffs 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 courts 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 twoyears-old. Since their sons 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.
Plaintiffs 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 [plaintiffs] 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 Courts
perspective, more effectively than he has represented himself.
Not only was plaintiff unreceptive to Judge Epsteins suggestion that he retain counsel,
but he was aggressively hostile to the judges criticism of his conduct as a self-represented
attorney. Judge Epstein, in a decision dated May 28, 2014 in which he denied plaintiffs 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, Youre 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.
Plaintiffs 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 withdrew
the Article 78 proceeding after the attorney general had
filed responsive papers. Thats not true. He filed it after I
filed a notice of discontinuance. Its lie after lie after lie
that comes out of your mouth. And I am tired of it.
Plaintiffs 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 were gonna be in the Appellate
Division tomorrow, getting a stay, and then well go back down to D.C. on Friday,
and were going to open up to Ms. Comforts domestic violence petition, and
were gonna have a hearing down there in from of Judge Blant, because thats
who she lied to, saying that she filed the motion and well have him make a
finding of domestic violence. So thats all I have to say.
THE COURT: Are you finished?
MR. ZAPPIN: Oh, Im finished, your Honor.
Plaintiffs 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, plaintiffs 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. Its 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 plaintiffs request. When
May approached, plaintiff delayed the trial again. Justice Kaplans order of May 6, 2015 stated:
Given the fathers 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 defendants attorney and one on the law firm where
defendant is employed. Plaintiff has also made demands for defendants medical records from
doctors who treated her as far back as college.
Plaintiffs 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, plaintiffs 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 neverending, as are his e-mails, letters, subpoenas, and discovery demands.
Moreover, plaintiffs 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 Generals 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 Claimants 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 wifes counsel. She stated that what was [e]ven more
egregious is the husbands inclusion of pictures of the attorneys 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 Kaplans 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. Wallacks personal life and relationships. Such communications are in clear
violation of an attorneys 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. Wallacks 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 plaintiffs communications with him and his firm to
matters directly concerning the case and directing plaintiff to make no reference to counsels
family or personal relationships.
The AFCs Motion to Quash Plaintiffs Subpoena (Motion Seq. 19)
It is neither plaintiffs 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
plaintiffs many applications to disqualify Ms. Cohen from continuing to be the childs 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 plaintiffs emotional state. From that point on, plaintiff has
dedicated himself to having her removed from her role.
Plaintiffs 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 crossmotion here but rather, those efforts have extended to tactics designed to extort, bully, and
intimidate. The first was to intentionally violate Justice Kaplans order that he share the cost of
Ms. Cohens 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 childs 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 AFCs 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 childs 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
plaintiffs fathers name. Illustrative of these postings, and indicative of the whole nature of the
enterprise, are the following messages:
Harriet. Youre 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 websites postings removed.
On July 22, 2015, the date on which I placed the decision on the record resolving five
open motions, I denied Ms. Cohens application for an order of protection. But as a similar
consequence to plaintiffs 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 plaintiffs share of
the fees for Ms. Cohens 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
childs 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 plaintiffs apparent intentions, Ms. Cohens position as an advocate cannot be
compromised by plaintiffs 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 courts 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 plaintiffs overall conduct towards Ms. Cohen in this proceeding, plaintiffs
subpoena on her constitutes another tactic in what threatens to be an inexhaustible arsenal.
Because the documents sought are either irrelevant to plaintiffs 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 AFCs Motion With Regard to Plaintiffs 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.
Cohens expert witness, a board certified psychiatrist. Plaintiff has filed a complaint against the
psychiatrist with the OPMC, the agency responsible for disciplining medical doctors.
Plaintiffs 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
psychiatrists 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 plaintiffs 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 Kaplans 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 psychiatrists 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 longoutstanding sum. And never once does plaintiff mention that Justice Kaplans 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 AFCs experts 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 AFCs expert was done in
accordance with a valid court order. It is equally clear that plaintiffs 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 physicians 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 plaintiffs 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 AFCs Application for the Imposition of Sanctions Against Plaintiff (Motion Seq. 21)
The OPMCs summary dismissal of the complaint confirms the righteousness of the
AFCs 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
defendants 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 plaintiffs
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 plaintiffs 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 AFCs 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 AFCs 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.

Plaintiffs 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 AFCs expert the retainer that Justice Kaplan had set in her
appointment order, reflects an obvious intent on plaintiffs 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, plaintiffs 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 courts
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 plaintiffs 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).
Plaintiffs Cross-Motion (Motion Seq. 21)
The first branch of plaintiffs 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 AFCs motion to have him held responsible for her experts attorneys 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 AFCs
expert, which rendered moot the AFCs 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 Secretarys 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 AFCs 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 plaintiffs application to disqualify her must be denied.
The second branch of plaintiffs 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 courts 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
courts attention to actually support the AFCs position, not his.

wherein I declined to sign plaintiffs Order to Show Cause seeking to renew his application for
disqualification, I thoroughly set the out the reasons why plaintiffs application was baseless and
why it was in the childs 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 plaintiffs 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 AFCs assertions that whatever minor bruises and scrapes the child has exhibited,
and which plaintiff has sought repeatedly to portray as proof of defendants physical neglect or
abuse of the boy, are simply the normal result of being an active two-year-old. Contrary to
plaintiffs 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 childs
health and functioning, as well as what she has learned from the childs treating pediatrician, is
entirely within the scope of the AFCs 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 plaintiffs 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 AFCs motion to quash the subpoena and issue
a protective order, is granted; and it is further
ORDERED, that Motion Sequence 21, the AFCs motion for relief with respect to
plaintiffs 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 attorneys fees incurred as a result of plaintiffs misconduct
necessitating the instant motions, and with $5,000 to be paid to the Lawyers Fund for Client
Protection as a result of plaintiffs 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 plaintiffs 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

Gmail - Subpoena to ALM in Zappin v. Comfort

10/27/15, 2:32 PM

Anthony Zappin <anthony.zappin@gmail.com>

Subpoena to ALM in Zappin v. Comfort

Calman, Camille <CamilleCalman@dwt.com>
To: Anthony Zappin <anthony.zappin@gmail.com>
Cc: David Schorr <deschorr@schorr-associates.com>

Wed, Oct 21, 2015 at 6:25 PM

Dear%Mr.%Zappin:
%
Thanks%very%much%for%speaking%with%me%this%a;ernoon.%%Just%to%clarify,%what%I%said%was%that%it%was%my
understanding%that%the%reporter%had%already%told%you%that%he%received%the%decision%from%a%clerk%in%JusAce
Coopers%chambers.%%We%believe%that%a%moAon%to%compel%is%likely%to%fail%because%New%Yorks%Shield%Law%provides
strong%protecAons%to%media%parAes,%parAcularly%in%the%context%of%a%thirdKparty%subpoena%on%an%issue%collateral
to%the%central%issue%of%the%liAgaAon.
%
Sincerely%yours,
%
Camille Calman%| Davis Wright Tremaine%LLP
1251 Avenue of the Americas, 21st Floor | New York, NY 10020-1104
Tel: (212) 603-6454 | Fax: (212) 489-8340
Email:%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]

https://mail.google.com/mail/u/0/?ui=2&ik=0f70d525f4&view=pt&q=s=true&search=query&msg=1508c82550b043b9&siml=1508c82550b043b9

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EXHIBIT 10

EXHIBIT 11

EXHIBIT 12

Gmail - Trial Continuance / Motion to Clarify

10/27/15, 2:36 PM

Anthony Zappin <anthony.zappin@gmail.com>

Trial Continuance / Motion to Clarify

Matthew Andelman <mandelman@delaneymckinney.com>
To: "Anthony Zappin (anthony.zappin@gmail.com)" <anthony.zappin@gmail.com>

Fri, Jan 17, 2014 at 1:11 PM

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 the
Court 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 of
currently 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 and
attorneys 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 I
will let the court know when we seek our relief to aid in its understanding of what, if any, scheduling issues are
contested.

Matthew B. Andelman

5425 Wisconsin Avenue, Suite 401

Chevy Chase, MD 20815
T: (301) 913 5236
F: (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 recipient
named above. It is confidential and protected from disclosure; it may be legally privileged. If the recipient and/or reader of this
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Gmail - Trial Continuance / Motion to Clarify

10/27/15, 2:36 PM

message is not the intended recipient, you are hereby notified that any review, copying, disclosure, dissemination, distribution,
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EXHIBIT 13

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

FAMILY DIVISION

- x

Docket Number: 2013 DRB 003821

ANTHONY ZAPPIN,
Petitioner,
vs.
CLAIRE COMFORT,
Respondent.
- - - - - - - - - - - - - - - x

Thursday, January 9, 2014

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.

14-00260

Deposition Services, Inc.

12321 Middlebrook Road, Suite 210
Germantown, MD 20874
Tel: (301) 881-3344 Fax: (361) 881-3338
info@DepositionServices.com www.DepositionServices.com

tkg

MR. ZAPPIN:

Blakeman.

MR. ANDELMAN:

MR. ZAPPIN:

THE COURT:

In New York?
Yes.

Well, I, I mean I don't, there

doesn't seem to be any particular urgency in getting this

scheduled.

Zappin's part to accommodate a pre-existing professional

commitment and the trial is only a month later.

would have authority to award, award it retroactively.

I think it's a reasonable request on Mr.

10

So, I'm not going to schedule that for a hearing.

11

said there were two things and that was one.

12

MR. ANDELMAN:

I still

You

I just wanted to check on the

13

status of March 5th, that it's scheduled for trial, for

14

how many hours?

15

handling your calendar, and we just wanted to double-check

16

once we got here.

17

There was an issue with Judge Di Toro

THE COURT:

Her notes say it was scheduled for

18

half a day, which is what you had requested.

19

there is a chance it may go --

I understand

20

MR. ANDELMAN:

We'll see what -

21

THE COURT:

longer than that.

22

MR. ANDELMAN:

That was, yes, at a different

23

We'll see.

time in the case, but

24

THE COURT:

Okay.

25

MR. ANDELMAN:

we'll address that as needed.

27

EXHIBIT 14

EXHIBIT 15

EXHIBIT 16

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
X
ANTHONY ZAPPIN
Plaintiff,

AFFIDAVIT OF
MATTHEW C. HURLEY

-- against -Index No. 301568/14

CLAIRE COMFORT,
Defendant.
X
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

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 to
reveal the exact details concerning the project or the specifics of Mr. Zappin's upcoming work on it. It is
my understanding that Ms. Comfort is also a patent litigator and therefore I must be particularly cautious
as to specific details I provide to the Court about Mr. Zappin's work at Mintz Levin to protect attorneyclient 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.

-kJ

April 29, 2015

New York, NY

Dated:

MATTHEW C. HURLEY'

Sworn to before me this

29th day of April, 2015

tary Public

JULIEANNE BARRETTO
Notary Public
Commonwealth of Massachusetts
My Commission Expires March 9, 2018

EXHIBIT 17

Gmail - FW: Zappin v. Comfort/Index No.: 301568/14

9/28/15, 10:25 PM

Anthony Zappin <azappin@gmail.com>

FW: Zappin v. Comfort/Index No.: 301568/14

Lara Ott <lara@laraott.com>
To: "Anthony Zappin (azappin@gmail.com)" <azappin@gmail.com>

Wed, Apr 29, 2015 at 9:37 AM

Anthony My e-mail to the Court.

From: Lara Ott

Sent: Wednesday, April 29, 2015 9:37 AM
To: Joan Levenson; 'Andrew Coyle'
Cc: 'Robert M. Wallack'; 'Brittney Hershkowitz'; hcohen@crsslaw.com
Subject: 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 to
further discuss the trial dates in this matter. I understand that today is the Parts motion calendar but, as this is a matter of urgency
to Mr. Zappin and his employer, I write to respectfully to inquire as to whether the Court is able to accommodate our request for a
conference call today with counsel. As I stated at the Court conference, Mr. Zappin has prior engagements and deadlines for
matters he is working on at Mintz Levin which conflict with the current trial dates. Going forward on the current dates will
prejudice 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 at
Mintz Levin yesterday, April 29. They reiterated to me that Mr. Zappin is absolutely indispensable on a confidential project for
the firms client(s) that has a statutory deadline of July 15, 2015. The deadline cannot be moved by any court or administrative
body. Given the deadline, Mr. Zappin will be required to devote countless hours from May through July 15 to the preparation and
completion of the project(s). Included in his time, Mr. Zappin will be required to travel for various client and expert meetings as
well 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 they
are willing to submit a written request through my firm to adjourn the dates, they are concerned as to whether the Court would
consider 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 extremely
concerned as to whether Mr. Zappin would be able to fulfill his obligations on the client matters but, that, absent an adjournment
in the very short term, his employment is now at risk.

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Page 1 of 2

Gmail - FW: Zappin v. Comfort/Index No.: 301568/14

9/28/15, 10:25 PM

Given the above, I therefore request that the Court adjourn the current dates to secure Mr. Zappin's employment and to avoid any
undue prejudice to Mintz Levin and its clients. I would be grateful if the Court could make itself available for a conference call
today 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.

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EXHIBIT 18

Gmail - FW: Zappin Trial Dates

10/27/15, 2:43 PM

Anthony Zappin <azappin@gmail.com>

FW: Zappin Trial Dates

Lara Ott <lara@laraott.com>
To: "Anthony Zappin (azappin@gmail.com)" <azappin@gmail.com>

Fri, May 1, 2015 at 11:32 AM

Anthony Please see below.

From: Harriet Cohen

Sent: Friday, May 1, 2015 11:18 AM
To: jlevens@courts.state.ny.us
Cc: Lara Ott; Robert M. Wallack ('rwallack@wallackfirm.com'); 'Brittney Hershkowitz'; Robert Pagano; Maherly
Manigault
Subject: Zappin Trial Dates

Dear Ms. Levenson and Counsel:

I take no position on Mr. Zappins request that all trial dates presently scheduled by this Court
be adjourned sine die to dates after July 15th. I do apprise this Court that I am actually engaged
during 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

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Gmail - FW: Zappin Trial Dates

10/27/15, 2:43 PM

E-Mail Address: hcohen@crsslaw.com

Website:

www.crsslaw.com

This message and any attachments may contain confidential or privileged information and is
only 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 this
message and all attachments. Any unauthorized disclosure, use, distribution or reproduction of
this message or any attachments is prohibited and may be unlawful.

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EXHIBIT 19

CSHtrN RASIN STINE SGHUMAfi{H LLF

Attorneys at L,qw
7 Times $quare, 3S-'Flaor
New York, New York 1003S
Tel.r (2f2If,ll'081$

Faxr {212}t0?"6100

Harriet Newrnan Cohen

flonnie H. Rabin

Direct dial: 21?:512-081 2

E-fulail address; brabi n@crssJaw,ccm

Marlha Cohen $line

Gretchen Beall $chumann.

PaulC, Kurland
Tim Jarnes

nmanfra-Gird Creegan*
Evridiki Poumpouridis
Lindsav R. FfqltFJ
Robert Pagano, Legal Assistanl
*a[so.admltted in New
Jersey

Septernber 10,2014

EY H+.NF
FIon, Deborah A, Kaplan, J.S,C.
Supreme Court of tlrs State of New York
County ofNel York
60 Centre Sheet, Fart 20, Courtroorn 540
Nerv York, Neiv York 10007

Re:

Zappin.v, Comfort
irxlsx No.301568/14

Dear Justice Kaplarr:

I arn tlre atforrley for the child Reid Zappin, The evidsntiary he*ring as to rvhetlrcr
supervised 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 pny
a $10,000 retainer to;
Anron S. Mefiikin, M.D. (CV attached)

l5 Ccnir*l Park West, Ste. l2

New York, New York 10023, 212 - 988-6230
Dr. Melrikin is a boatd cet'rified lic*rrsecl psychirtlist nnd lliplornat, Arnerican Boaucl of
Psychiatry 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
I

hour{y charge for

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/
llaruiet Newman Colren
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

CURRLSIJLUIi4 VITAE - AARON $. METIiJKI.N'"iIII.I).

Birth:
Addrcss:
FJate

of

09/1011965

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
1990

Matriculation Certiticatn, King travid High School, Johannesburg

M,D. University af the Witrvatersranrl Meelical $clrool, Johannesburg
fiouth Afi'ica

PO$r. G.RAI}UATE TSAINTN.G :

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

'

1993-1996

I{lV clinic

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

P.*ychiatrl',

"

1997

- 20S7 NYU

of

NYU Medical Center:lBellevue Flospital. New York City

fuIedical Center, Psychoanalytic In*titute

HO.$PITAL AFPOINTMENT$ AND EM PLOYMSNT

1998-1999 Acting fuIedical Director', Bellevue Hospital Outpatie*t Alcohol Clinic
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1999-2000 Clinicrrl Insnnctor, NYU Medical Center
Ilirector Methadorre Rehabi I itation Ilr ogram, Bellevue Flospital
T

Clittical Director Buplenorplrine / Networ{r Therapy rcseareh project

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Director,. Consultation l,iaison Psyehiatry Service LHH

Pari-tinre private practice

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Diplomat, Arnerican Board of Psychiatry and Neurology
Psychoanafyst,

NYU Psychoanalytic lrrstitute

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1997

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"

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MrITS4 .#$fir$

1984
1985
1988
1988

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U*io* of $outh Af ican

Studerrts Health Directive

Intsrvierving Ccrnmittee for plospe*tive meclical students, University of

the 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

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1996-1997 Chief Rcsident NYU

l|f EIyIBES$$

.
.
.
.
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1994
1995
1998
1998

Departmerrt of Psychiatrl'/Bellevue l{ospital

ONAL ORG

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Anrerican Medical Association

Arnerioarr Fsychiatric Associatior!

Bellevue-NYU Psychi*tric Society

A*rerican Society of Addicticn Medicine
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,

1997-20fr7

NYU Medical Center.

PsychotheraFy and substance abuse treatrnefi supervisol for second

third year tesitients in the flepathnent of Psychiatry at NYU Medical

Center
ancl

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.RAFHYT
Origin*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

p'imary rarc dise$se? Appropriale level,r oJ'autpatienl care

Maartens G, Wood

tor

k:

I.t HIV IAJD,S n

patients rrftlr Ill.VlAIDS. AIfrS

1995,9:619-623.

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

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 Yolk
1995.?'he Trrtintng af Psychiatt'y Resident,r

in Psychiatric Rshnbilitation.

EXHIBIT 20

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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
321
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

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

The 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.
2

Current Opinions with Annotations of the Council on Ethical and Judicial Affairs, Chicago, American Medical Association,
20022003.
3

Chapter 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 Associations 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.

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.

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 doctorpatient 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.
4

Statements in italics are taken directly from the American Medical Association's Principles of Medical Ethics.

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:

4.

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.

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.

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,
M

Index Nos. 301568/2014 and

3 5007 5/2014

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

Gmail - Zappin v. Comfort - 301568-14

10/27/15, 2:50 PM

Anthony Zappin <anthony.zappin@gmail.com>

Zappin v. Comfort - 301568-14

Timothy Corbo <tcorbo@nycourts.gov>
Fri, Aug 28, 2015 at 10:10 AM
To: 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'oral
argument'is'required'and'accordingly,'both'appearances'are'hereby'cancelled.''All'brieng'schedules'will
remain'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
'
'

https://mail.google.com/mail/u/0/?ui=2&ik=0f70d525f4&view=pt&q=t&qs=true&search=query&msg=14f74a4d139daa5f&siml=14f74a4d139daa5f

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EXHIBIT 26

Gmail - Zappin v. Comfort, Index No. 301568/14

10/27/15, 2:52 PM

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 PM
To: "tcorbo@courts.State.ny.us" <tcorbo@courts.state.ny.us>
Cc: "Robert M. Wallack ('rwallack@wallackfirm.com')" <'rwallack@wallackfirm.com'>, "David E. Schorr (deschorr@schorrassociates.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 AFCs Reply Affirmation in Further Support of the AFCs Order to Show
Cause with respect to Dr. Metrikin, which is being served on the parties today and will be filed with the Court.

************************************************************************************************************************

I send this email as well to bring a procedural matter to the Courts 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 Anthony
Zappin.

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. They
are 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 which
Mr. Zappin states that he submits in response to my September 2, 2015 reply papers on my motion to quash Mr.
Zappins subpoena duces tecum (Mot. Seq. No. 19).

The second set of papers that was contained in envelope is entitled, Supplemental Affidavit of Anthony Zappin in
Support of Cross-Motion, which Mr. Zappin states he submits in support of his September 1, 2015 Cross-Motion to
https://mail.google.com/mail/u/0/?ui=2&ik=0f70d525f4&view=pt&q=Hqs=true&search=query&msg=14fb39227f086cb2&siml=14fb39227f086cb2

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Gmail - Zappin v. Comfort, Index No. 301568/14

10/27/15, 2:52 PM

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 the
Court 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 prior
permission 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 less
than 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 having
adequate time to review and respond to papers.

In addition, Mr. Zappin served his Sur-reply Affidavit on Mot. Seq. No. 19, even though the Courts email on August
31st 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. Zappins unauthorized and late papers
and submit that we will not be serving or filing any response to these two surreplies unless hereafter directed to do
so 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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Gmail - Zappin v. Comfort, Index No. 301568/14

10/27/15, 2:52 PM

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