Opinion
Index No. 652721/2022 Motion Seq. Nos. 001 002
12-07-2022
Delo, Benjamin J. Plaintiff, v. Cozen O'Connor, Jennifer Queliz, Michael C. Schmidt, and Janice S. Agresti, Defendants.
Unpublished Opinion
MOTION DATE 12/05/2022
DECISION + ORDER ON MOTION
Arlene P. Bluth, Judge
The following e-filed documents, listed by NYSCEF document number (Motion 001) 15, 16, 17, 18, 19, 20, 21, 25 were read on this motion to/for SEAL
The following e-filed documents, listed by NYSCEF document number (Motion 002) 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 22, 24, 26, 27, 28 were read on this motion to/for DISMISS
Motion sequence 001 and 002 are being consolidated for disposition. Defendants' motion to dismiss (MS 002) is granted and the motion to seal (MS 001) is granted without opposition.
Background
This action, in which plaintiff represents himself, relates to an underlying litigation in which plaintiff, also self-represented, sued non-party JPMorgan for employment-related issues. Defendants here are the attorneys and law firm which represented JPMorgan in that case, which was commenced and settled in federal court.
Here, plaintiff alleges that defendants made a misrepresentation to the federal court regarding an agreement for an extension of time to answer the complaint filed in that case. Ms. Queliz, representing JPMorgan, submitted a letter to the court requesting an extension to answer the complaint, stating that she had "consulted Plaintiff on [her] request, and he has given his consent for the additional time," (NYSCEF Doc. No. 11). Plaintiff then submitted a separate letter stating Ms. Queliz made a misrepresentation to the Court, stating that there was a condition that JPMorgan accept service, which was merely emailed to JPMorgan. After receiving both letters, U.S. District Judge Vernon S. Broderick issued an order granting JPMorgan's request for an extension of time.
Thereafter, Ms. Queliz left her position at the law firm and Mr. Schmidt and Mr. Agresti became attorneys of record and eventually settled the case with plaintiff on February 10, 2022. Pursuant to the settlement agreement, plaintiff "knowingly and voluntarily releases RELEASEES, both individually and in their business capacities, to the full extent permitted by law, from all claims, causes of action, agreements, attorneys' fees, costs, and debts, known and unknown, asserted and unasserted, which [plaintiff] has, had, or may have, as of the date [plaintiff] executes this Agreement," (NYSCEF Doc. No. 13 at 3).
In addition to the foregoing release language, the settlement agreement contained a clause stating "[plaintiff] promises not to sue any RELEASEE in court. This is different from the General Release above. Besides releasing claims covered by that General Release, [plaintiff] agrees never to sue any RELEASEE for any reason covered by that General Release," (id. at 4). "Releasees" includes not only the defendant in the underlying action, but the "present and former attorneys" of the parties (id. at 1).
Plaintiff then filed the instant suit against the defendants claiming they violated New York Rules of Professional Conduct (22 NYCRR 1200.0) rule 3.3 and Judiciary Law § 487 alleging that defendants committed a fraud upon the court and deprived plaintiff of his right to a fair trial. Plaintiff alleges that Mr. Schmidt and Mr. Agresti had an opportunity, as the new attorneys on the case, to correct Ms. Queliz's misrepresentation, but failed to do so. Plaintiff alleges that if the defendants did not make such a misrepresentation, he could have submitted a default judgment in the amount of $2 million, the amount he seeks in damages in the instant complaint.
Motion to Seal
Plaintiff did not oppose defendants' motion to seal the settlement agreement. Defendants demonstrated that the contents of the settlement agreement, parts of which were exposed in the instant proceeding, require that this agreement be sealed. The public has no concern for this matter, and the settlement agreement entered by the parties requires that counsel seek full protection from the court to protect confidentiality.
The Court grants the motion to seal the settlement agreement; although heavily redacted, the agreement does provide that it be kept confidential (NYSCEF Doc. No. 13 at 8). While, ordinarily, dockets should be available to the public, the defendants here were forced to upload the portions of the settlement agreement showing all the release language in response to plaintiffs lawsuit. Under the circumstances present here, this Court orders the settlement agreement to be sealed.
Motion to Dismiss
Defendants argue that based on documentary evidence, plaintiffs claims should be dismissed as all of the documents in the underlying action indicate plaintiff has no claim against them.
First, defendants contend that plaintiff failed to state a claim against Mr. Schmidt and Mr. Agresti, as they were not involved in the case during the time that plaintiff exchanged emails with Ms. Queliz. Defendants also claim that Rules of Professional Conduct § 3.3 states that it does not "serve as the basis for a civil cause of action among private litigants," and plaintiffs claim should be dismissed outright pursuant to CPLR 3211(a)(7). Further, under Judiciary Law § 487, defendants contend that plaintiffs claims are inappropriate collateral attacks on a judgment and are precluded by collateral estoppel because plaintiff had the opportunity to litigate the alleged fraud in the underlying action but failed to do so. Finally, pursuant to the parties' settlement agreement, plaintiffs claims are barred by the broad releases contained therein.
In response, plaintiff claims the settlement agreement does not protect against claims for fraud. Plaintiff also contends that the settlement agreement does not protect the defendants because they were not parties to the agreement, only JPMorgan was. Furthermore, plaintiff claims the instant action is not a collateral attack on a previous judgment because the previous judgment was based on false information.
In reply, defendants claim that the settlement agreement contains a "General Release," precluding plaintiff from "bringing any claims of any kind existing up to the date of the settlement agreement against the defendants," (NYSCEF Doc. No. 27). Defendants further assert that plaintiff did not raise an issue of material fact in response to their motion to dismiss nor did plaintiff submit any caselaw supporting his position.
Discussion
"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. We accept the facts as alleged in the [pleading] as true, accord [the proponent of the pleading] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972 [1994] [citations omitted]). "At the same time, however, allegations consisting of bare legal conclusions ... are not entitled to any such consideration" (Connaughton v Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 141, 75 N.E.3d 1159 [2017] [citation and internal quotations omitted])
"Under CPLR 3211 (a) (1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law," (Leon v Martinez, 84 N.Y.2d 83, 88).
Pursuant to CPLR 3211(a)(5), "Collateral estoppel, or issue preclusion, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party..., whether or not the tribunals or causes of action are the same," (Storman v Storman, 90 A.D.3d 895, 898, 935 N.Y.S.2d 63 [2nd Dept 2011] [internal quotations and citations omitted]).
"Dismissal under CPLR 3211(a)(7) is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" (Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v. Matthew Bender & Co., Inc., 37 N.Y.3d 169, 175150 N.Y.S.3d 79 [2021] [internal citations and quotations omitted]).
The Court grants defendants' motion to dismiss for several reasons.
Pursuant to CPLR 3211 (a)(1), the documentary evidence submitted indicates that Ms. Queliz did not misrepresent any facts in the underlying action. As Ms. Queliz attempted to explain to plaintiff in her emails, plaintiff attempted to serve JPMorgan by emailing the summons and complaint. That, of course, is not a permissible way to effectuate service. Ms. Queliz agreed to accept service this way and asked plaintiff to extend the time for JPMorgan to respond. Plaintiff agreed (NYSCEF Doc. No. 9 at 5). After this exchange, Ms. Queliz received from her client a request to waive service that was submitted by plaintiff after he sent the complaint to JPMorgan but before she came to an agreement with him. Ms. Queliz attempted to clarify whether there would be a waiver of service or an acceptance of service, and when plaintiff failed to communicate either, Ms. Queliz wrote to the court requesting an extension of time to answer. Plaintiff, self-represented, believed that because Ms. Queliz had all the documents, a waiver of service was not necessary. But this is not how service works; just because the defendants had the papers does not mean they were appropriately served under New York law.
In any event, even after receiving plaintiffs letter alleging fraudulent conduct, Judge Broderick granted the extension. If plaintiff thought that decision was improper, then he should have sought to vacate it or appeal that decision in the court where it occurred. Instead, plaintiff accepted it, settled that case and signed a release.
The release, signed by plaintiff, states that plaintiff "knowingly and voluntarily releases [entities' present and former attorneys], both individually and in their business capacities, to the full extent permitted by law, from all claims, [and] causes of action," (NYSCEF Doc. No. 13 at 3). Despite releasing the attorneys, he sues them here.
Additionally, plaintiff failed to state a cause of action against the attorneys for a party with whom he settled an action. His claim that he would have received a default judgment for $2 million if defendants had not allegedly committed fraud upon the federal court is total speculation. He did not show that he properly served JPMorgan or adequately explain how this Court can ignore the fact that plaintiff voluntarily settled the case. As defendants stated, if plaintiff believes there was fraudulent conduct during the course of litigation, then the appropriate remedy is to pursue a vacatur of the stipulation of dismissal.
Accordingly, it is hereby
ORDERED that, good cause having been found, and no opposition being submitted, the Clerk of the Court is directed to seal the settlement agreement, Exhibit 7 (NYSCEF Doc. No. 13), upon service on him of a copy of this order with notice of entry; and it is further
ORDERED that thereafter, or until further order of the court, the Clerk of the Court shall deny access to the settlement agreement to anyone (other than the staff of the Clerk or the court) except for counsel of record for any party to this case and any party; and it is further
ORDERED that such service upon the Clerk of the Court shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website); and it is further
ORDERED that defendants' motion to dismiss is granted.