Opinion
CV-090357-07/KI
11-25-2011
Ken Caldwell, Plaintiff, v. Gutman, Mintz, Baker Sonnfeldt, P.C., Defendants.
PLAINTIFF PRO SE: Ken Caldwell DEFENDANT PRO SE: Gutman, Mintz, Baker & Sonnenfeldt, P.C.
PLAINTIFF PRO SE: Ken Caldwell
DEFENDANT PRO SE: Gutman, Mintz, Baker & Sonnenfeldt, P.C.
Katherine A. Levine, J.
The following constitutes this Court's decision on defendant Gutman, Mintz et al ("defendant" or "Gutman") motion, pursuant to CPLR §2221(d), to reargue and obtain an order reversing this Court's decision dated September 20, 2010. Defendant claims that the Court erred in restoring certain claims of plaintiff Ken Caldwell ("plaintiff" or "Caldwell") to the trial calendar, pursuant to CPLR §3404, because plaintiff failed to present a reasonable excuse for failing to move to restore within one year of the Appellate Term's decision dated April 9, 2009, and because the doctrines of res judicata and collateral estoppel bar him from relitigating his claims.
The instant motion has its genesis in Caldwell's appeal of the decision of the Hon. Fisher Rubin (Index No. 26710/06)("Rubin decision"), dated June 4, 2007, which awarded a money judgment in favor of the plaintiff landlord, Fairfield Residential Associates ("Fairfield" or "landlord") in the amount of $11,462.93 with costs and interests. A judgment of possession had previously been granted to the landlord in a holdover action. Justice Rubin also denied Caldwell's counterclaim seeking further rent abatement.
Caldwell appealed this decision and thereafter filed a summons with an endorsed complaint dated July 24, 2007 ("instant action") which described the substance of plaintiff's causes of action as "wrongful use of civil proceeding" and "abuse of process." Caldwell sued for $25,000 plus interest on each cause of action. In the annexed "complaint" Caldwell set forth six causes of action alleging that the defendant Gutman et al violated a number of disciplinary rules governing the Lawyer's Code of Professional Responsibility and "Rules of Conduct" by initiating a meritless suit against him and his wife for breach of lease and damages to the apartment, by making false statements and filing fraudulent documents with the court during the course of housing court litigation in 2003 through litigation before Judge Rubin, by sending threatening letters to take legal action for rent owed, and by failing to prove essential elements of their case at trial on June 4, 2007 before Judge Rubin. Caldwell also alleged that the firm violated the Fair Debt Collection Practices Act ("FDCPA") (15 USC §1695) by failing to validate the debt after plaintiff's request and an unidentified New York Statute "EC 7-26 and 7-5" by misleading the court into granting Fairfield a judgment when there was no record that Fairfield is either registered with the New York Department of State or is the actual owner of the premises or was sold the debt.
Defendant moved to dismiss the complaint on the grounds that this court has no subject matter jurisdiction since plaintiff was seeking an amount of recovery beyond the jurisdictional limit of the court. By decision and order dated June 9, 2008, the Hon. Toussaint directed that the action and motion be held in abeyance pending the determination of the pending appeal of Judge Rubin's decision, but that the action and motion could be restored to the calendar upon written request once the pending appeal had been determined. By decision dated February 11, 2009, the Appellate Term affirmed Judge Rubin's decision on the grounds that the court's award was properly based upon two so-ordered stipulations, which Caldwell had unsuccessfully moved to vacate in 2002. Caldwell then failed to perfect the appeal he had filed over the court's denial of his motion to vacate. On April 9, 2009, the Appellate Term denied Caldwell's motion for reargument, or, in the alternative leave to appeal to the Appellate Division. Caldwell did not move to restore this action to the trial calendar until approximately one year and one month after the Appellate Term's final order.
Curiously, neither party has annexed Caldwell's motion to restore as an exhibit or asserted the exact date Caldwell brought the motion to restore, although the file on this motion is voluminous. However, based upon defendant's affirmation in opposition to the motion to restore dated May 14, 2010, it is clear that the motion was brought sometime between April 9, 2010 and May 14, 2010.
While the instant action was stayed, Caldwell and his wife Lisa Caldwell ("Caldwells") filed a pro se complaint in federal court on October 7, 2008, against the instant defendant Gutman, Mintz, Baker & Sonnernfeldt P.C. ("Gutman") and defendants Russell Polirer; Fairfield Presidential Associates, and other defendants (collectively referred to as "federal defendants"). As delineated in the Decision and Order of the Hon. Joseph Bianco, dated March 30, 2010, 701 F. Supp 2d 340 (E.D.NY 2010), plaintiffs asserted numerous federal claims, including violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 USC 1692, et seq.; the Fair Credit Reporting Act ("FCRA"), 15 USC 1681, et seq; Rule 11 of the Federal Rule of Civil Procedure("FRCP") 11; the Federal Criminal False Statements Statute, 18 USC 1001; and federal criminal mail fraud, pursuant to 18 USC 1341 and 1346. Plaintiffs also asserted a panoply of state causes of action including violations of New York General Business Law §349; malicious prosecution; abuse of process; and wrongful use of a civil proceeding. See, 701 F. Supp. 2d at 344.
On June 2, 2009, the federal defendants filed their motion to dismiss the complaint pursuant to Rule 12(c). On November 6, 2009, Judge Bianco referred defendants' motion to Magistrate Judge Wall for a Report and Recommendation ("R & R"). By Opinion dated January 27, (2010 U.S. Dist. LEXIS 31194 (E.D.NY. 2010)), Magistrate Judge Wall, in summarizing the claims, noted that "(t)he complaint also suggests various violations of the rules of professional and judicial conduct." The Magistrate noted that although the complaint was "dense and quite difficult to follow at times, the gravamen of the claims arises from proceedings related to an action in the Civil Court" and an appeal by the Caldwells of the judgment entered by that court. Id at 2.
Magistrate Wald first recommended granting the defendants judgment on the pleadings under the Rooker Feldman doctrine ("Rooker Feldman"), because the "plaintiffs lost in state court , complain of numerous injuries caused by the state court judgment, and invite review and rejection of that judgment." Id at 4. More specifically, the court noted that many of plaintiff's allegations focus on the defendants' attorneys failure to produce certain documents in the state court proceedings including a certificate of occupancy. Since those issues pertain solely to the state court proceedings and "were explicitly or implicitly addressed in that proceeding" they were barred from review in the district court. Id. To the extent that plaintiffs asserted claims independent of the prior state court judgment, Magistrate Wald found that both the FDCPA and FCRA claims were barred by the statute of limitations and that there was no private cause of action for the FRCA claim. Id at 5. Magistrate Wald also found that plaintiff had failed to plead one or more of the essential elements of each of his state court claims sounding in tort. The malicious prosecution claim could not because one of the essential elements - that the state cause of action end in the plaintiffs' favor - did not occur. Id at 6. The malicious abuse of process claim could not stand since plaintiff failed to allege "the barest inference of some other purpose" than that defendants sought to obtain an award of back pay. The Magistrate also recommended dismissal of the NY General Business Law §349 claim as the complaint failed to set forth "deceptive acts by the defendants that would allow the court to find that a plausible claim existed." Id at 7. He also dismissed the remaining federal criminal statute claims.
Judge Bianco adopted the Magistrate's recommendation and dismissed all of plaintiffs' claims seeking to attack the state court judgment under Rooker Feldman. The court found that "read as a whole, the complaint appears to allege that defendants have engaged in a pattern of vexatious litigation and harassment of plaintiffs " since 2001 which has caused plaintiff to suffer emotional and financial injury. 701 F. Supp 2d at 348. The 2007 civil court judgment was "one of the main events in this pattern, and the complaint can be construed as alleging injuries that occurred as a result of the judgment." 701 F. Supp. 2d at 348-49. Since the court would necessarily have to review the state- court judgment to decide plaintiff's claims, Rooker Feldman bars claims relating to all allegations challenging the civil court judgment. Id at 349.
The court then found that independent of its Rooker Feldman ruling, collateral estoppel barred plaintiffs' malicious prosecution, abuse of process, NY General Business Law, FCRA and FDCPA claims to the extent they were based on defendant Fairchild's failure to state a case, or introduce certain documents in the previous action. Id at 350. The court found that these issues were necessarily decided in the state court proceedings and that plaintiffs had a full and fair opportunity to litigate these issues in state court. Simply put, the civil court implicitly found that regardless of what evidence was introduced, Fairchild was entitled to use and occupancy, and to decide plaintiffs claims on these issues, the court would have to "re-visit issues that have already been decided in state court." 701 F. Supp. 2d at 350.
Judge Bianco then found that the state court proceedings had a res judicata effect on the aforementioned claims as well as plaintiff's claims for wrongful use of civil proceeding and wrongful eviction claims, at least to the extent those claims related to civil court proceedings. Of particular note, the court noted that the instant defendant - Gutman Mintz - was in privity with defendant Fairchild who was the plaintiff in the civil court action, since the complaint could be construed as alleging that Gutman acted together with Fairchild in bringing the prior action against plaintiff. The court thus deemed the current action to be between the same parties as the prior action. Id at 352. Judge Bianco also found the claims brought in the federal case - plaintiff's FDCPA, FCRA, NY General Business Law, malicious prosecution, abuse of process and wrongful use of a civil proceeding - stemmed from an allegation that defendants improperly obtained the civil court judgment. However, many of the factual allegations plaintiff raised in federal court to support their claims involved issues that could have been raised as claims or defenses in the state court proceeding and in fact were raised in Caldwell's appeal of Judge Rubin's decision.
Of greater import to the instant matter, the court discussed those claims that were not or could not have been litigated in the Civil Court proceeding, including defendants' actions in enforcing the civil court judgment, the collection letters sent out by defendants, defendants reporting plaintiffs to the credit bureaus which allegedly blacklisted plaintiffs, and defendants Polirer and Gutman's alleged violation of various housing procedural statutes during an action plaintiff brought against FPA for abuse of process and wrongful use of a civil proceeding in state court during 2008.
Judge Bianco affirmed the magistrate's dismissal on all of these claims for failure to state a cause of action or statute of limitations, except for two. Judge Bianco declined to dismiss plaintiffs' FCRA claim because "[i]t was possible that the two-year limitations clock did not begin to run until less than two years before plaintiffs filed the instant complaint". 701 F. Supp. 2d at 354. The court also found that a private cause of action was available under 15 U.S.C. §1681(q), the provision upon which plaintiff relies . While the complaint failed to adequately plead a violation of §1681(q), since plaintiff did not allege that their address was obtained either from a consumer reporting agency or under false premises, the court allowed plaintiffs to replead their FCRA claim since such defects could potentially be cured in an amended complaint.
Section 1681(q) provides that "(a)ny person who knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses " shall either be fined or imprisoned for not more than two years or both.
Judge Bianco gave leave to plaintiff to plead a claim under the NY Consumer Protection Law, §5-77 in an amended complaint.
Plaintiff Has Set Forth a Reasonable Excuse for the Delay.
CPLR §3404 provides that cases "marked off' or stricken from the calendar or unanswered ",,,and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute". Notwithstanding this time limitation, courts have discretion to grant a motion to restore brought more than one year after the case is stricken from the calendar provided the movant demonstrates (a) the merits of his/her claim; (b) a lack of prejudice to the opposing party or parties; (c) a lack of intent to abandon the action; and (d) a reasonable excuse for the delay. Kaufman v. Bauer, 36 AD3d 481 (1st Dept. 2007). See, Rodriguez v. Rachelson, 306 AD2d 457 (2d Dept. 2003). All four requirements must be met before a dismissal pursuant to CPLR §3404 can be vacated (Katz v Robinson Silverman Pearce Aronsohn & Berman, 277 AD2d 70, 74 (1st Dept. 2000). Ruiz v Roofeh, 285 AD2d 541 (2d Dept. 2001); Kinsler v. Iovino, 277 AD2d 286 (2d Dept. 2000).
However, CPLR §3404 is inapplicable to Civil Court proceedings. In Chavez v. 407 Seventh Avenue Corp. 39 AD3d 454 (2d Dept. 2007), the Second Department found that CPLR 3404 conflicted with a revised provision of the Uniform Rules for the New York City Civil Court (22 NYCRR §208.14(c)) which governs matters marked off the trial calendar. That section, unlike CPLR §3404, "..makes no provision for the dismissal of an action (Id at 456)."
The Uniform Rules were then elaborated upon in Marvin Johnson v Rockaway One Company, LLC, 26 Misc 3d 901 (Civil Ct, Queens Co, 2009) where the Civil Court distinguished a dismissal for failure to prosecute (the Chavez case) from a motion to dismiss based upon the plaintiff's inability to establish a reasonable excuse for its failure to restore the action to the calendar within one year. 26 Misc 3d at 902 citing to Sawak v Brown, 2008 NY Slip Op 51536(U), 20 Misc 3d 136(A) (App. Term, 2d Dept. 2008); Ambrose v Rudzewick, 19 Misc 3d 143(A). The court found that "(t)here is no reason to conclude that the legislature, when it omitted authorization for dismissal for failure to prosecute ... Civil Court actions marked off the calendar for more than one year, intended to preclude the dismissal of Civil Court actions which it has been determined cannot be restored to the trial calendar". See Babickaia v Kanevsky, 2008 NY Slip Op 51650(U); 20 Misc 3d 1128(A); 475-481 West l59th Street Realty Corp. v Gerlain, 2006 NY Misc LEXIS 2853 (Civ. Ct., NY Co. 2006). See, Leitner v Goldstein, 2011 NY Slip Op 50612(U), 31 Misc 3d 133(A), (App. Term, 2d Dept. 2011).
To restore an action to the trial calendar, the proponent must show both a reasonable excuse and a meritorious cause of action. Johnson, supra, 26 Misc 3d at 902. In exercising its discretion to restore a matter to the calendar, the court must heed the strong judicial policy that favors determination of actions on the merits. See, Tsioumas v Time Out Health & Fitness, 78 AD3d 619 (1st Dept. 2010); Mtr of Lancer Ins. Co. v Rovira, 45 AD3d 417 (1st Dept. 2007).
Here, the motion to restore was made approximately one month after the one year deadline had expired. Plaintiff posits two reasons for the delay: that he was diagnosed with Type II diabetes in 2009 which" caused him to run back and forth to his doctor," and his work on the federal case "which I was order (sic) from the federal judge to meet certain deadlines to turn over documents to the defendant's attorney ...and forgot all about my claims in civil court..."
Confusion that litigation in another court engenders as to adherence to time lines in the court where a motion to restore is before constitutes a reasonable excuse. See, Campbell v. Enough, 273 AD2d 166 (1st Dept. 2000)(plaintiffs' counsel provided a reasonable excuse based on a misconception regarding the relationship between this and a related negligence action). Furthermore, the mere passage of time does not establish prejudice. Muriel v. St. Barnabas Hosp., 3 AD3d 419 (1st Dept. 2004); Peterson v City of New York, 286 AD2d 287, 289 (1st Dept. 2001).
The lengthy decisions of the Magistrate and District Court set forth above reveals that the parties were engaged in extensive litigation over complicated procedural issues which obviously consumed a lot of time. While the Appellate Term decision denying plaintiff's application for argument was issued on April 9, 2009, Judge Bianco issued his decision on March 30, 2010, approximately nine days prior to the expiration of the year in which Caldwell had to restore the state action. Therefore, it is clear that Caldwell was engrossed in federal litigation during the year he had to restore the instant action to the calendar as of right and his contention that he lost track of his civil court case is credible. Therefore, this Court finds that plaintiff has set forth a reasonable explanation for his delay.
Plaintiff Fails to Set Forth a Meritorious Claim.
Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues of fact or law that were or could have been raised in that action. Kremer v. Chem. Constr. Corp., 456 U.S. 461, 72 L. Ed 2d 262 (1981); Allen v. McCurry, 449 U.S 90, 94 (1980); Gramatan Home Investors v Lopez, 46 NY2d 481 (1979); Rosen v. Levy, 19 Misc 3d 1101(A), 2008 NY Slip Op. 50467(U) (Sup. Ct., Bronx Co. 2008). This doctrine also "operates to preclude the renewal of issues actually litigated and resolved in a prior proceeding as well as claims for different relief which arise out of the same factual grouping or transaction and which should have or could have been resolved in the prior proceeding." Luscher v. Arrua, 21 AD3d 1005 (2nd Dept. 2005); Koether v Generalow , 213 AD2d 379, 380(1st Dept. 1995). "This form of claim preclusion applies to all issues and theories of recovery applicable to the cause of action, whether or not they were actually litigated." Alphonso Lewis v. City of New York, 17 Misc 3d 537, 541-42 (Sup. Ct., Bronx Co. 2007)
While difficult to decipher, it appears that Caldwell's eight causes of action challenge Gutman's actions in litigation on behalf of Fairfield in the proceeding before Judge Rubin. As clearly ruled upon by Judge Bianco, all claims alleging that Gutman violated a panoply of statutes by suing Caldwell for breach of lease and damages to the apartment, making false statements or filing fraudulent documents before Judge Rubin were barred both by the Rooker Feldman doctrine as well as res judicata and collateral estoppel.
The Rooker Feldman doctrine is inapplicable to this Court's determination of Caldwell's claims as it only bars a federal court from reviewing injuries caused by a state court judgment. See, Hoblock v. Albany County Bd. Of Elections, 422 F.3d. 77 (2d Cir. 2005)
Judge Bianco found that Gutman was in privity with Fairchild, since the complaint could be construed to allege that Gutman, as well as other defendants, acted together with Fairchild in bringing the prior actions against plaintiffs. 701 F. Supp. 2d 352. The court therefore found that res judicata would bar all claims against all the defendants (including Gutman) which attacked or related to the civil court proceeding before Judge Rubin, including plaintiffs' FDCPA, FCRA, malicious prosecution, abuse of process, NY General Business Law, wrongful eviction and wrongful use of a civil proceeding claims were barred by the doctrine of res judicata. 701 F. Supp. 2d at353. This ruling applies with equal force to all of Caldwell's claims which attack Gutman's actions during its prosecution of Fairchild's interest before Judge Rubin and includes its eighth cause of action which alleges that Gutman violated an unidentified New York Statute or regulation "EC 7-26 and 7-5" by "misleading the court into granting Fairfield a judgment when there is no record that Fairfield is either registered with NYS Department of State or is the actual owner or was sold the debt." To the extent that this claim sounds in malicious prosecution, it is also barred under the doctrines of res judicata as Judge Bianco determined that one cannot state a claim of malicious prosecution if one has lost in the action during which the alleged malicious prosecution occurred.
Caldwell alleges that Gutman violated the FDCPA by not validating the debt after he and his wife disputed the validity of the debt by mailing two letters, one in January and the second on May 11, 2006. Both the Magistrate and Judge Bianco dismissed the FDCPA because the plaintiffs filed their federal complaint beyond the one year statute of limitations governing FDCPA claims. Plaintiff filed the instant action on July 24, 2007, more than one year beyond his last letter disputing the debt which plaintiff claims triggered his FDCPA claim. Therefore, this Court dismisses this claim as being beyond the one year statute of limitations.
Finally, Caldwell's multiple causes of action alleging that defendant Gutman et al violated a number of disciplinary rules governing the Lawyer's Code of Professional Responsibility and "Rules of Conduct" by suing him and his wife for breach of lease and damages to the apartment, making false statements or filing fraudulent documents to the court must be dismissed. As set forth above, Judge Bianco already determined that any claims challenging the state court proceeding before Judge Rubin are barred by the doctrine of res judicata.
Furthermore, an attorney's alleged violation of a disciplinary rule does not, by itself, give rise to a private cause of action as there is no private right of action for a violation of the Code of Professional responsibility. See Steinowitz v. Gambescia, 2009 NY Slip Op. 51370(U), 24 Misc 3d 132(A) (App. Term 2d Dept. 2009); Schwartz v. Olshan, Grundman etc al , 302 AD2d 193, 199 (2d Dept. 2003). In some cases, conduct constituting a violation of a disciplinary rule may constitute evidence of malpractice. Steinowitz v. Gambescia, supra; Schwartz, supra at 198. However, to establish a cause of action alleging legal malpractice, a plaintiff must prove the existence of an attorney client relationship between himself and the attorney being sued. Nelson v. Pamela S. Roth, 69 AD3d 605,606 (2d Dept. 2010); Volpe v. Canfield, 237 AD2d 282 (2d Dept. 1997). Here, it is impossible for Caldwell to assert a legal malpractice claim against attorneys who were not representing him but his adversaries.
For all the afore stated reasons, this Court finds that Caldwell does not have a meritorious claim and thus, upon reargument, grants defendant's motion to dismiss. The Court notes that Caldwell may still pursue his FCRA claim and Consumer Protection Law claim in an amended complaint in federal district court.
_____________________________
KATHERINE A. LEVINE
JUDGE, CIVIL COURT