This is an action in which pro se Plaintiff Albert G. Fraccola, Jr., challenges the transfer of two parcels of real property from Defendant 1st Choice Realty, Inc. (a long defunct corporation) to his late wife, Phyllis Fraccola. The conveyances were completed in 2006 in accordance with a stipulation entered into by the Fraccolas during their divorce proceeding, which was so-ordered by the Hon. John W. Grow, J.S.C. on July 28, 2005 (Radel Affirmation, Exhibit A). This is the seventh time that Mr. Fraccola (or various legal entities under his control) has tried to void those judicially approved property transfers, making this action just the latest in a long series of frivolous, vexatious and meritless motions and legal proceedings.

Specifically, Mr. Fraccola's first act of frivolous conduct was by way of a motion to vacate Justice Grow's July 28, 2005, Order, which was denied by Order of the Hon Samuel D. Hester, J.S.C., entered February 5, 2009, on the grounds of estoppel (Radel Affirmation, Exhibit B).

The second was a plenary action commenced by Mr. Fraccola in 2011 alleging fraud. That action was dismissed with prejudice by Justice Hester by Order dated June 30, 2011, on the grounds of res judicata (Radel Affirmation, Exhibit C). Justice Hester's 2011 Order further provides that "Albert G. Fraccola, Jr. is barred from filing any actions which pertains to any matter which is the subject of the "So Ordered" Stipulation of July 28, 2005, without prior approval of the Justice of the Supreme Court" (Id.). This dismissal was unanimously affirmed by [*2]the Appellate Division (Fraccola v Fraccola, 92 AD3d 1209 [4th Dept 2012]).

The third time was a 75-page petition (labelled a "complaint") brought in Oneida County Surrogate's Court in 2017 following the death of Phyllis Fraccola, in which Mr. Fraccola once again claimed fraud and named multiple non-estate "defendants" as parties (Radel Affirmation, Exhibit D). The petition was dismissed on procedural grounds on June 26, 2017, for exceeding the jurisdiction of Surrogate's Court by the Hon. Randall Caldwell (Radel Affirmation, Exhibit E).

The fourth time was another plenary action commenced on July 20, 2017, which was dismissed, with prejudice, by Justice Hester on November 30, 2017, on the grounds of res judicata (Radel Affirmation, Exhibit F). Justice Hester's 2017 Order further awards sanctions and, once again, provides that Mr. Fraccola "is barred and restrained from commencing, either individually or through a corporation or other entity in which he has a controlling interest, any further litigation related to any matter or issue arising from the Order of the Hon. John G. Grow dated July 28, 2005" (Id.). Justice Hester's dismissal was unanimously affirmed by the Appellate Division (Fraccola v 1st Choice Realty, Inc., 167 AD3d 1578 [4th Dept 2018]).

The fifth time was a third plenary action commenced on June 19, 2020, which was dismissed sua sponte by the Hon. Patrick MacRae, J.S.C., on February 18, 2021, on the grounds of res judicata and the statute of limitations (Radel Affirmation, Exhibit F). Justice MacRae then granted Mr. Fraccola leave to reargue and, upon reargument, again dismissed the action and, yet again, barred Mr. Fraccola "from commencing any action(s) arising from the facts and circumstances set forth in the Complaint without prior leave of the Court" (Radel Affirmation, Exhibit H). Justice MacRae's sua sponte dismissal was unanimously affirmed by the Appellate Division, which held that Mr. Fraccola has "'abused the judicial process by engaging in meritless, frivolous or vexatious litigation" (Fraccola v 1st Choice Realty, Inc., 206 AD3d 1649, 1649 [4th Dept 2022]).

The sixth time was a fourth plenary action commenced on March 30, 2022, which was dismissed by Order of this Court entered December 13, 2022, finding that Mr. Fraccola has — once more — "abused the judicial process by engaging in meritless, frivolous or vexatious litigation" (CA2022-000708).

The instant action, which was commenced on December 9, 2022, is the seventh, and now final time, that Mr. Fraccola has attempted to relitigate the stipulated transfer of the property to his late wife. On December 28, 2022, Defendant Getnick Livingston Atkinson & Priore, LLP, filed a motion to dismiss pursuant to CPLR 3211(a)(5) on the grounds of estoppel, res judicta and statute of limitations, which was returnable on February 7, 2023 (Motion No. 1). On January 26, 2023, Mr. Fraccola submitted his opposition to the motion to dismiss and cross-moved for summary judgment (Motion No. 2). On January 30, 2023, co-Defendant the Estate of Phyllis Fraccola cross-moved to dismiss the Complaint as well (Motion No. 3). The motions were then adjourned to March 7, 2023, and taken on submission.

This pending action is, hopefully, the final chapter in Mr. Fraccola's demonstrated history of filing frivolous lawsuits relating to decades-old business and property dealings with his late [*3]ex-wife, despite three prior orders prohibiting his filing of any such action without leave of court. Even reviewing the pro se complaint in this action in the light most favorable to Mr. Fraccola (Hughes v Rowe, 449 U.S. 5, 9 [1980]), it is wholly barred on its face by the doctrines of collateral estoppel, res judicta and the statute of limitations (CPLR 3211), as the Appellate Division, Fourth Department, has repeatedly held. The action has absolutely no merit and is a continuing abuse of the judicial process and a harassment to the Defendants (Fraccola, 206 AD3d at 1649). Defendants' motion to dismiss is therefore granted, in all respects, and the Complaint is dismissed, with prejudice.

It is not lost on this Court that Mr. Fraccola, in filing this frivolous action, has unabashedly disregarded the prior orders of Justices Hester and MacRae. Since those orders have not prevented Mr. Fraccola's continuing abuse of the judicial system, this Court is taking another approach. Appended to this Decision and Order is a copy of Part 130 of the Rules of the Chief Administrator, and this Court invites Mr. Fraccola to read those rules very carefully, and to then think long and hard about trying for an eighth time to void the court-approved property transfers. To be clear, if Mr. Fraccola is not deterred, and elects to file yet another frivolous action without leave of the Court in violation of the prior orders of former Justices Hester and MacRae, then this Court will not hesitate to proceed, on its own initiative under Part 130, and "make such award of costs or impose such financial sanctions" against him as are appropriate (22 NYCRR § 130-1.1[b]).

Accordingly, upon due deliberation, it is hereby

ORDERED and ADJUDGED that the motion to dismiss by Defendant Getnick Livingston Atkinson & Priore, LLP, pursuant to CPLR 3211 (Motion No. 1) and the motion to dismiss by Defendant the Estate of Phyllis Fraccola pursuant to CPLR 3211 (Motion No. 3) are GRANTED, and the Complaint is DISMISSED in its entirety, with prejudice; and it is further

ORDERED that Plaintiff's cross-motion to deny Defendant Getnick Livingston Atkinson & Priore, LLP's motion to dismiss (Motion No. 2) is DENIED; and it is further

ORDERED that an electronic copy of this Decision and Order shall be accepted by the Oneida County Clerk for filing.

1. Notice of Motion to Dismiss, dated December 28, 2023 (Motion to Dismiss, Motion No. 1);

2. Affirmation of Patrick G. Radel, Esq., in Support of Motion to Dismiss with Prejudice, affirmed December 28, 2022, with Exhibits A through H, attached (Motion No. 1);

3. Notice of Cross-Motion, dated January 26, 2023 (Cross-Motion for Summary [*4]Judgment, Motion No. 2);

4. Plaintiff Albert G. Fraccola, Jr.'s Affidavit in Support of Cross-Motion, sworn to January 25, 2023, with Exhibits 1 through 10, attached (Motions No. 1 and 2);

5. Notice of Cross-Motion, dated January 30, 2023 (Cross-Motion to Dismiss, Motion No. 3); and

6. Affirmation of Peter M. Hobaica, Esq., in Support, affirmed January 30, 2023, with Exhibit A, attached (Motion No. 3).