Opinion
Index No. CV-002315-23/NY
02-13-2025
Sebastian Doggart, Plaintiff, v. Brenna Praeger, Defendant.
Attorneys For Plaintiff George T. Lewis, Jr., Esq. Attorneys For Defendant Zachary G. Meyer, Esq. Sutton Sachs Meyer PLLC
Attorneys For Plaintiff George T. Lewis, Jr., Esq.
Attorneys For Defendant Zachary G. Meyer, Esq. Sutton Sachs Meyer PLLC
RENA MALIK, J.
Recitation, as required by CPLR 2219 (a), of the papers considered on this motion:
Papers Numbered
Notice of Motion (MS 001), Affirmation, Exhibits 1-2
Notice of Motion (MS 002), Affirmation in Support & Exhibits, Affidavit & Exhibits 3-5
Affidavit, Affirmation in Opposition to MS 002 and in further support of MS 001 & Exhibits 6-7
Reply Affirmation (MS 002) 8
Upon this Court's interim decision and order dated August 7, 2024, the Court found that defendant's objection to personal jurisdiction was sufficiently raised, warranting a traverse hearing and held the balance of defendant's motion in abeyance.
I. Traverse Decision
The parties appeared before the Court on October 9, 2024 for a traverse hearing, at which time plaintiff and defendant appeared by counsel, and process server Nicholas Viveros appeared and testified.
Plaintiff offered into evidence the summons and complaint (exhibit 1), affidavit of service (exhibit 2) and photographs of the front of the building from previous attempts (exhibits 3-5) which were accepted into evidence. Plaintiff also offered photographs alleged to be of the front door of apartment 1101 showing process affixed to the door (exhibit 6) and a close up of the apartment door taken on the process server's phone, showing the numbers 1101 (exhibit 7), which were admitted into evidence over defendant's objection.
Viveros testified that he was assigned as process server by Preferred Legal Services, and that he made three attempts at service. On March 22, 2023, he went to the building and remembered a doorman allowed him up to the apartment; he knocked and there was no response. A time and date-stamped photograph was taken outside the building (exhibit 3). On a second attempt, the main entrance was locked and Viveros was not able to gain access or speak to the doorman, and another time and date-stamped picture was taken outside the building (exhibit 4). On the next attempt on May 4, 2023, the doorman stated that no one was home and that there was no one for the doorman to call, and Viveros was not allowed up to the apartment. Another time and date-stamped photograph was taken outside the building (exhibit 5).
On May 6, 2023 Viveros stated that he spoke with the doorman about the need to complete service by "nail and mail" and was escorted up to apartment 1101 and taped the summons and complaint on the door, and took a time and date-stamped picture of the apartment door (exhibit 6). Viveros testified that he knew the apartment he needed to serve was Apartment 1101 because of the information provided on his "field sheet." Because his electronic app only permitted him to take one picture, and that picture had to show the door and surrounding areas, he took another one on his phone showing a close-up of the door handle, revealing the numbers 1101, and sent it to his boss. Viveros testified that he did the mailing right after posting, as indicated on the affidavit of service. Plaintiff also submitted his log showing where he was that day as exhibit 8, which included defendant's address and a description of where the apartment was located within the building.
At a traverse hearing, "plaintiff must establish jurisdiction by a preponderance of the evidence" (Skyline Agency, Inc. v Ambrose Coppotelli, Inc., 117 A.D.2d 135, 139 [2d Dept 1986]; see also Eros Intl. PLC v Mangrove Partners, 191 A.D.3d 464 [1st Dept 2021]).
Trial courts are given due deference to its credibility determinations and this Court finds the process server's testimony as credible (see, e.g., SBS Owners, Inc. v. Kelly, 19 Misc.3d 141 [A], 2008 NY Slip Op 50938[U] [App Term, 1st Dept 2008]). The process server had recollection of events and testified regarding use of the use of the Independent Server application and GPS used to track service; what occurred during each attempt; and submitted pictures concerning such service attempts, which the Court found to be a fair and accurate representation corresponding to his testimony (see, e.g., Leifer v Moskowitz, 77 Misc.3d 720 [Civ Ct, New York County 2022]). As plaintiff proved by a preponderance of the evidence that, after three prior attempts on various dates and times at 400 West 63rd Street, Apt. 1101, New York, New York and failing to find the defendant or a person of suitable age and discretion, service was properly made pursuant to CPLR 308 (4) by affixing the summons to defendant's apartment door and thereafter completed the mailing. Accordingly, the traverse is denied and the branch of defendant's motion to dismiss based on CPLR 5015 (a) (4) and CPLR 3211 (a) (8) is denied.
II. Remainder of Defendant's Motion
A. CPLR 3012 (d)
Defendant also moves to excuse the default in timely appearing and requesting leave to appear and defend. "Under CPLR 3012 (d), a trial court has the discretionary power to extend the time to plead, or to compel acceptance of an untimely pleading 'upon such terms as may be just,' provided that there is a showing of a reasonable excuse for the delay" (Emigrant Bank v Rosabianca, 156 A.D.3d 468, 472 [1st Dept 2017]). Factors to consider include "the length of the delay, the excuse offered, the extent to which the delay was willful, the possibility of prejudice to adverse parties, and the potential merits of any defense" (id. at 472-73; see Fried v Jacob Holding, Inc., 110 A.D.3d 56, 60 [2d Dept 2013] ["Whether a proffered excuse is 'reasonable' is a 'sui generis determination to be made by the court based on all relevant factors"], quoting Harcztark v Drive Variety, Inc., 21 A.D.3d 876, 876-877 [2d Dept 2005]).
Here, the Court finds the defendant's excuse as reasonable. While she may have been properly served with process in May 2023, it was not personal service (see generally CPLR 317; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141-42 [1986]). Defendant moved apartments in August of that year, and therefore did not receive any additional notice, nor the motion for default judgment. Defendant claims that, upon learning of the action through a docket search by new counsel on an unrelated matter, this motion was promptly made. Plaintiff failed to articulate any prejudice by the delay in appearing and the Court finds defendant's defenses are potentially meritorious, as discussed infra. Finally, the Court finds that defendant's motion should be granted in accordance with the strong public policy of resolving cases on the merits (see, e.g., Naber Elec. v Triton Structural Concrete, Inc., 160 A.D.3d 507, 508 [1st Dept 2018]).
Accordingly, as the Court grants defendant's an extension of time and an opportunity to appear and defend, plaintiff's motion for default judgment is denied (motion sequence no. 001).
B. Dismissal Pursuant to CPLR 3211 (a) (1), (3), and (7)
1. The Parties' Contentions
Defendant argues that the complaint must be dismissed because plaintiff lacks standing and that the complaint fails to state a cause of action upon documentary evidence because plaintiff was engaged in the unauthorized practice of law (UPL) in violation of Judiciary Law § 478 (New York's UPL statute). Consequently, the parties' agreement to provide such services in violation of the law is unenforceable and the breach of contract cause of action may not be maintained. Defendant also claims that the complaint fails to adequately state a cause of action for account stated in failing to plead that defendant received any invoices.
Plaintiff's counsel argues that plaintiff was not engaged in the practice of law but was instead providing consulting services for which there is no prohibition under the UPL. Further, counsel states that plaintiff never held himself out to be an attorney and points to the disclaimer in the contract and in his e-mail correspondence advising the same (Lewis aff at ¶¶ 14-18).
Plaintiff's counsel's affirmation also states that the plaintiff's affidavit "explains in detail how consultants are a recognized part of the family law practice" (Lewis aff at ¶ 19). However, the Court finds that the cited paragraphs do not lend support for such a statement.
Plaintiff also submits his own affidavit explaining the services he provided and appears to make an argument that the "use of UPL statutes by any State [including New York's Judiciary Law § 478] is an unconstitutional infringement upon fundamentally secured rights of those wishing to avail themselves of knowledgeable laypersons to assist them or persons knowledgeable in their cases or situations" (Doggart aff at ¶ 70).
But see Upsolve, Inc. v James, 604 F.Supp.3d 97, 117-118 (SDNY 2022) ("it is little wonder that the UPL rules have consistently withstood legal challenges" given the state's compelling interest in regulating the legal profession to protect its citizens).
Plaintiff continues and claims that "UPL is a scheme, artifice or trick devised by Bar Association lawyers like [defense counsel] because they have a financial stake in preservation of their monopolistic 'union'" (Doggart aff at ¶ 70). The affidavit goes on to discuss instances of lawyers and non-lawyers doing something related to legal work, with citations to, inter alia, published works from the U.S. Federal Trade Commission and various federal cases.
The Court does not find it necessary to discuss each of plaintiff's arguments, nor the statements of law or fact, as most of the cases cited are mischaracterized or, if anything, have very little support for the propositions plaintiff suggests. For example, plaintiff states:
Right of counsel of choice (not an attorney) was expressed by the U.S. Supreme Court in United Mine Workers v. Illinois Bar Assoc., 389 U.S. 217; NAACP v. Button, 371 U.S. 415; Brotherhood of Railroad Trainmen v. Virginia State Bar, 377 U.S. 1 (1964). The Supreme Court held that States may not pass statutes prohibiting UPL because they would interfere with the Right to Freedom of Speech and Freedom of Association, as secured in the First Amendment.(Doggart aff at ¶ 93). However, that is not true and the cases cited do not lend any support for plaintiff's statement. "In NAACP v. Button for example, the Court held that the NAACP's work on anti-segregation cases-and the organization's efforts to recruit plaintiffs for those cases-constituted 'modes of expression and association protected by the First and Fourteenth Amendments'" (Jacoby & Meyers, LLP v Presiding Justices of the First, Second, Third and Fourth Departments, Appellate Div. of the Supreme Ct. of New York, 852 F.3d 178, 185 [2d Cir 2017], quoting NAACP v Button, 317 U.S. 415, 428-49 [1963]). Notably, the Supreme Court "emphasized that 'no monetary stakes [were] involved' in the NAACP's mission" (Upsolve, Inc., 604 F.Supp.3d at 110, quoting NAACP v Button, 317 U.S. 415, 428-49, 443-44 [1963]) and has repeatedly distinguished situations where a lawyer was engaged in "the pursuit of expressive activity" versus situations (similarly here) where the purpose "was the advancement of his own commercial interests" (Jacoby & Meyers, LLP, 852 F.3d at 186, discussing In re Primus, 436 U.S. 412 [1978]). The other two cases plaintiff cited stand for the proposition that "clients seeking legal representation-specifically in the context of union activity-have a right protected by the First Amendment to associate with each other to obtain legal representation and vindicate their rights effectively" (Jacoby & Meyers, LLP, 852 F.3d at 185). There is no union activity involved in this case. Plaintiff also commented on how paralegals "perform a vital function with regard to legal and non-legal expertise" and question whether they too should be "locked up for 'felonious violations' of Judiciary Law § 478 (Doggart aff at ¶ 89; see also id. at ¶ 103). Clearly plaintiff is not aware that a paralegal's engagement in the practice of law is, in fact, illegal (see Carter v Flaherty, 37 Misc.3d 46, 47-48 [App Term 9th & 10th Jud Dists 2012] [discussed infra ]; Sussman v Grado, 192 Misc.2d 628, 629 [Dist Ct, Nassau County 2002] [a certified paralegal who was engaged in a business of drafting forms and orders for particular clients without the supervision of an attorney engaged in the unauthorized practice of law; and was found liable for engaging in deceptive business practices; and the Court referred the defendant to the Office of the Attorney General]; see also Polaski v Lee, 7:24-CV-4-BO-BM, 2024 WL 5121029, at *1-5 [EDNC Dec. 16, 2024] [where paralegal-plaintiffs sought to provide assistance in filling out forms and giving legal advice tailored to individual's specific circumstances "on a variety of court-created forms in family law, landlord-tenant law, and estate planning and probate services" and brought constitutional challenge to North Carolina's UPL statute under the threat of being prosecuted for engaging in the unauthorized practice of law]).
2. Applicable Law - Unauthorized Practice of Law (Judiciary Law § 478)
Judiciary Law § 478 provides:
It shall be unlawful for any natural person to practice or appear as an attorney-at-law or as an attorney and counselor-at-law for a person other than himself or herself in a court of record in this state... without having first been duly and regularly licensed and admitted to practice law in the courts of record of this state, and without having taken the constitutional oath.
"The statute aims to protect our citizens against the dangers of legal representation and advice given by persons not trained, examined and licensed for such work, whether they be laymen or lawyers from other jurisdictions" (Spivak v Sachs, 16 N.Y.2d 163, 168 [1965]; seePeople v Alfani, 227 NY 334, 339 [1919] ["The reason why preparatory study, educational qualifications, experience, examination and license by the courts are required, is not to protect the bar... but to protect the public"]).
As the Court of Appeals reasoned long ago:
Why have we in this state such strict requirements for admission to the Bar? A regents' certificate or college degree followed by three years in a law school or an equivalent study in a law office marks the course to a bar examination which must finally be passed to entitle the applicant to practice as an attorney. Recognizing that knowledge and ability alone are insufficient for the standards of the profession, a character committee also investigates and reports upon the honesty and integrity of the man. And all of this with but one purpose in view and that to protect the public from ignorance, inexperience and unscrupulousness. * * * Ignorance and stupidity may here create damage which the courts of the land cannot thereafter undo. Did the legislature mean to leave this field to any person out of which to make a living? Reason says no. * * *(Alfani, 227 NY at 339-340; see Whitehead v Town House Equities, Ltd., 8 A.D.3d 369, 370-71 [2d Dept 2004] [to "permit otherwise would compromise the integrity of the practice of law in New York by permitting persons to evade the training, examination, licensing, ethical, and disciplinary requirements applicable to attorneys-at-law"]; Sussman v Grado, 192 Misc.2d 628, 632 [Dist Ct, Nassau County 2002] [noting that the "hundreds of thousands of hours" of pro bono services by the bar have gone a long way to "protect[] the rights of those who cannot afford legal representation" and acknowledges the public's continued need for assistance to navigate the court system. But ultimately reasoning "the guidance of an attorney and his or her professional staff seems much preferable to an 'independent paralegal' who has not gone through law school, has not passed the bar exam and who is not licensed in New York State (it should be noted that an attorney's license to practice law is subject to discipline if ethical standards are not met)"]).
Consequently, it is little wonder that "[a]s a matter of public policy, a contract to provide services in violation of the statute is unenforceable in our State courts" (El Gemayel v Seaman, 72 N.Y.2d 701, 705 [1988]). The Court of Appeals has thus "held that parties that engage in the illegal practice of law in New York may not recover legal fees" (State of NY ex rel. Stephen B. Diamond, P.C. v My Pillow, Inc., 180 A.D.3d 419, 419 [1st Dept 2020]).
What, then, constitutes the practice of law?
"The 'practice' of law reserved to duly licensed New York attorneys includes the rendering of legal advice as well as appearing in court and holding oneself out to be a lawyer" (El Gemayel, 72 N.Y.2d at 706; see People v Jakubowitz, 184 Misc.2d 559, 561 [Sup Ct, Bronx County 2000] ["the prohibited practice of law includes the rendering of legal advice and preparation of legal papers in New York even if performed out of court and with respect to foreign law"]).
It is too obvious for discussion that the practice of law is not limited to the conduct of cases in courts. According to the generally understood definition of the practice of law in this country, it embraces the preparation of pleadings and other papers incident to actions and special proceedings and the management of such actions and proceedings on behalf of clients before judges and courts, and in addition conveyancing, the preparation of legal instruments of all kinds, and in general all advice to clients and all action taken for them in matters connected with the law. An attorney-at-law is one who engages in any of these branches of the practice of law.(Alfani, 227 NY at 337-338, quoting In re Duncan, 83 S.C. 186, 65 SE 210, 211 [Sup Ct 1909] [internal quotation marks omitted]).
"Additionally, such advice or services must be rendered to particular clients and services" to constitute the practice of law (El Gemayel, 72 N.Y.2d at 706, citing New York County Lawyers' Ass'n v Dacey, 28 A.D.2d 161, 174 [1st Dept 1967] [Stevens J.P., dissenting], revd sub nom. New York Lawyers' Assn. v Dacey, 21 N.Y.2d 694 [1967] [where a conviction was reversed as publishing a book entitled "How To Avoid Probate!" did not constitute the practice of law because "the representation and the advising of a particular person in a particular situation" is the "[essence] of legal practice"] [emphasis added]).
In Spivak v Sachs, the plaintiff was an attorney licensed in California but not in New York and sought to collect the reasonable value of legal services rendered to defendant. Plaintiff admittedly told defendant that "he was not licensed in New York and could do no more than consult with her, advise her and recommend New York counsel" (16 N.Y.2d at 166). The services for which plaintiff sought to recover fees included: "examin[ing] various drafts of separation agreements as proposed by defendant's Connecticut counsel and discuss[ing] her problems as to financial arrangements and custody of the children"; "express[ing] his opinion that the suggested financial provisions for her were inadequate and that 'she wasn't being adequately represented'" by her attorneys; advising that he did not believe Connecticut was the "'proper jurisdiction' for the divorce suit"; and plaintiff "tried without success to persuade defendant to discharge her New York counsel and retain a different New York lawyer named by plaintiff" (id.). All of this undoubtedly constituted legal services (id. at 165). Because plaintiff was not licensed in New York, the Court found he engaged in the "engage[d] in the illegal practice of law in New York [and] may not recover legal fees" (State of NY ex rel. Stephen B. Diamond, P.C., 180 A.D.3d at 419, citing Spivak, 16 N.Y.2d at 166).
In another situation, the alleged services for which fees were sought to be recovered included: "draft[ing] the complaint that was ultimately filed in New York Supreme Court, conduct[ing] research, prepar[ing] the memorandum for the New York Attorney General and assist[ing] with settlement negotiations" (State of NY ex rel. Stephen B. Diamond, P.C., 180 A.D.3d at 419). Such services undoubtedly constituted legal services and because the non-New York licensed "attorneys were engaged in the unauthorized practice of law, the fees incurred by them were unlawful" (id.).
In Carter v Flaherty, the defendant, "a purported 'paralegal,'" "entered into an agreement whereby defendant was to provide plaintiff with 'paralegal' services by reading, reviewing and researching plaintiff's criminal case in order to determine whether it was advisable for plaintiff to file a federal writ of habeas corpus or to make any post-conviction motions" (37 Misc.3d 46, 48 [App Term 9th & 10th Jud Dists 2012]). The contract was found to be "unenforceable as an illegal contract" as it was for "the rendition of legal advice" in violation of the UPL.
3. CPLR 3211 (a) (1) and (7)
With the principles of law regarding UPL outlined above, the Court now considers whether defendant met its burden entitling it to dismissal pursuant to CPLR 3211 (a) (1) and (7).
In determining dismissal under CPLR Rule 3211 (a) (7), the "complaint is to be afforded a liberal construction" (Goldfarb v Schwartz, 26 A.D.3d 462, 463 [2d Dept 2006]). The "allegations are presumed to be true and accorded every favorable inference" (Godfrey v Spano, 13 N.Y.3d 358, 373 [2009]). "[T]he sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977]).
A motion to dismiss a complaint based upon documentary evidence "may be appropriately granted where the documentary evidence utterly refutes the plaintiff's factual allegation, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of NY, 98 N.Y.2d 314, 326 [2002]).
Not every piece of evidence in the form of a document is properly deemed "documentary evidence." The appellate courts have noted this distinction, finding that legislative history and supporting cases make it clear that "judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are 'essentially undeniable,' would qualify as 'documentary evidence' in the proper case" (Fontanetta v Doe, 73 A.D.3d 78, 86 [2d Dept 2010]; Amsterdam Hosp. Grp., LLC v Marshall-Alan Assocs., Inc., 120 A.D.3d 431, 432 [1st Dept 2014]).
In support of the motion, defendant submits her affidavit, the parties' agreement, and three screenshots of text messages. In reply, defendant also relies upon plaintiff's affidavit in opposition to the motion (see Meyer reply aff at ¶ 21). The Court considers whether these items qualify as documentary evidence or should otherwise be properly considered upon a motion to dismiss for facial insufficiency.
While the Praeger affidavit indicates that "true copies of various correspondence and drafted court papers have been delivered to my counsel and annexed to his affirmation as 'Exhibit 7', and annexed hereto in 'Exhibit A'" (Praeger aff at ¶ 6), the Court notes that the exhibit does not contain anything appearing to resemble drafted court papers, although it does include the text messages.
(i) The Parties' Agreement
The parties' agreement identifies plaintiff as a "consultant" and sets forth the purpose of their "partnership" "is to work together to bring to a satisfactory and speedy conclusion of the child-custody and divorce case currently before the New York Courts, and to expose misconduct by certain family court judges and contractors" (Praeger aff, ex A [agreement] at ¶ 1).
The agreement states that plaintiff "will provide research, information and assistance on [defendant's] custody case and divorce matter"; and also that his $240/hour services "include face-to-face meetings, phone and video conversations and conferences, text exchanges, court appearances, and consultations with third parties" (agreement at ¶¶ 2, 5).
The agreement contains a disclaimer, whereby defendant acknowledged that she "fully understands" that plaintiff's "assistance does not comprise 'legal counsel'. [Plaintiff] is not a 'licensed attorney' and is not legally entitled to offer 'legal counsel'" (agreement at ¶ 4).
The Court finds that, while the agreement could be considered as documentary evidence, it does not conclusively establish, on its face, that plaintiff engaged in the unauthorized practice of law. The agreement appears carefully tailored to avoid any suggestion of "practicing law" by generically referring to the "services" as "research" and "assistance," while also including a disclaimer that plaintiff is not an attorney and therefore not "entitled to offer 'legal counsel.'"
Curiously omitted from plaintiff's invoices are any words describing said "services" (see Doggart aff, ex F). The sole invoice submitted in plaintiff's opposition papers itemized expenses (e.g., car service from the "UWS" to the courthouse) but is devoid of any details of the services performed constituting plaintiff's billable hours. The invoice simply sets forth the amount of hours worked times the rate.
But the question not readily answered in this agreement is: did plaintiff offer legal counsel? Did plaintiff offer legal research and assistance in drafting legal papers and court documents ? Clearly, a violation of UPL might only be able to be determined once the Court knows what plaintiff actually said and did, and upon review the documents that were prepared (see generally Upsolve, Inc. v James, 604 F.Supp.3d 97, 114 [SDNY 2022] [describing how a violation of the law may depend on what is said to clients; non-legal advice about debt problems may be permissible but advice on how to fill out an answer, which is a formal legal pleading, based on a client's individual circumstances, would violate the UPL]).
Contrary to plaintiff's contentions, the Court finds that the disclaimer language as irrelevant to the determination of this issue. In Spivak, the out-of-state attorney specifically advised the client that "he was not licensed in New York and could do no more than consult with her, advise her and recommend New York counsel" (16 N.Y.2d at 166). The agreement here reads in a similar fashion, yet the Court of Appeals found the contract was unenforceable because of the plaintiff's conduct - i.e., the obvious practice of law within New York as a non-New York duly licensed attorney.
(ii) Text Messages
One text message submitted by defendant appears to be dated June 17 (presumably in the year 2022) and reflects plaintiff texting defendant saying "I see you have blocked my access to NYSCEF again" (hereinafter text no. 1).
The remaining two screenshots are undated. In one (which the Court will refer to as text no. 2), plaintiff appears to be trying to find an attorney for defendant. From 1:05 pm through 3:01 pm, plaintiff sends the following text messages:
"I can speak to him, confirm he can take it on, and then send you both an introduction
I do need your reassurance first that, with the sole exception of Richard, you will not disclose any of our communications, or our agreement, with any third party that should not be a problem, right?
I reached out to a number of attorneys. One has got back saying she can't take anything on without an up-front retainer. Waiting on others reminder please to send me new NYSCEF password
Try this one: [inserts contact information for an attorney]
In the other undated screenshot (which the Court will refer to as text no. 3), defendant asks plaintiff "Why is he sending an order before court" to which plaintiff replies from 11:10-11:13 am:
well, he should have ruled on this beforehand anyway. He has to decide MS11 on the papers, and is doing that
did you send an email re inperson or remote?
the order is replete with lies "Defendant disappeared for 48 days made no attempt to see her children"
he does say that there are funds available for counsel fees, so you should demand that tomorrow, but to be paid to you to do as as [ sic ] you like with them
it's super hard for me to help with a) no indication from you on whether you intend to push for remote tomorrow; b) what status is with other attorneys; c) absolutely no funds provided for my assistance
so please can you answer those Qs
he is also setting a date for a "pre-trial conference" on July... [remainder of the screenshot is cut off]
Certainly, an argument can be made that the messages provide proof that plaintiff engaged in practicing law by (1) telling defendant what she should or should not do at a court appearance; and (2) providing his own opinion and interpretation of an order and court procedures (see, e.g., Spivak, 16 N.Y.2d 163; Carter, 37 Misc.3d 46; Sussman, 192 Misc.2d 628).
However, these text messages do not qualify as documentary evidence as they are missing basic information such as the date of the message (see, e.g., Nosegbe v Charles, 227 A.D.3d 1400, 1404 [4th Dept 2024] [text messages did not qualify as documentary evidence because, inter alia, the recipient was not identified and names and numbers were redacted]), and such electronic correspondence could be subject to manipulation (see Hon. Mark C. Dillon, Supplemental Practice Commentaries, McKinneys Cons Laws of NY, Book 7B, C3211:10 [as a "general rule," "letters and electronically-generated information such as e-mails" do not qualify as documentary evidence as such "forms of material are too easily manipulatable by a party to be allowed to affect a dismissal motion's outcome"]) and its contents could be "controverted by other evidence" (see MJ Lilly Assoc., LLC v Ovis Creative, LLC, 221 A.D.3d 805, 806 [2d Dept 2023] [email communications and printouts from plaintiff's website did not qualify as documentary evidence]). Accordingly, the Court cannot consider the text messages as part of defendant's motion on the central issue of whether plaintiff engaged in the unauthorized practice of law.
(iii) Defendant's Affidavit
Defendant's affidavit alleges in relevant part as follows:
On April 26th, 2022, I was a pro se litigant in the underlying Matrimonial Matter, whereupon Plaintiff was retained for no other purpose than to provide legal services to assist me in attaining a resolution of the Matrimonial Matter.
After Plaintiff was retained and paid under the Agreement, Plaintiff performed legal research, directly advised me on matters germane to the Matrimonial Matter, drafted legal documents therein, advised me on my own pro se legal document drafts, advised me on the consequences of Matrimonial Matter orders, attempted to settle the Matrimonial Matter, and accessed my pro se NYSCEF account to file items in the Matrimonial Matter on my behalf; true copies of various correspondence and drafted court papers have been delivered to my counsel and annexed to his affirmation as "Exhibit 7", and annexed hereto in "Exhibit A".
However, in approximately June of 2022, based upon Plaintiff's refusal to ever let me converse directly with the lawyers Plaintiff purported to supply, the general shoddy quality of Plaintiff's legal work presented to me, and Plaintiff directly contacting my husband in an attempt to settle the Matrimonial Matter, and Plaintiff e-filing to Defendant's pro se NYSCEF account, I realized that Plaintiff's conduct was untoward, ceased allowing him to work on my case, and severed all communication with him.(Praeger aff at ¶¶ 5-7 [emphasis removed]).
These allegations, if true, would undeniably demonstrate the unauthorized practice of law and, consequently, the illegality and unenforceability of the parties' contract. However, the affidavit does not constitute "documentary evidence" within the meaning of CPLR 3211 (a) (1) (see J.D. v Archdiocese of New York, 214 A.D.3d 561 [1st Dept 2023]; Correa v Orient-Express Hotels, Inc., 84 A.D.3d 651 [1st Dept 2011] citing, inter alia, Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 271 [1st Dept 2004]; Fontanetta, 73 A.D.3d at 86 ["it is clear that affidavits and deposition testimony are not 'documentary evidence' within the intendment of a CPLR 3211(a)(1) motion to dismiss"]).
Although "a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint" "[i]n assessing a motion under CPLR 3211 (a) (7)" (Leon v Martinez, 84 N.Y.2d 83, 88 [1994] [emphasis added]), affidavits submitted from a defendant "will almost never warrant dismissal under CPLR 3211" (Lawrence v Miller, 11 N.Y.3d 588, 595 [2008]) "unless [they] establish conclusively that plaintiff has no cause of action" (Rovello v Orofino Realty Co., Inc., 40 N.Y.2d 633, 636 [1976]). It is important to note that an affidavit is not necessarily subject to cross examination and the issue of whether plaintiff engaged in the practice of law - as opposed to the provision of non-legal advice (see, e.g., Upsolve, Inc., 604 F.Supp.3d at 115) - has not been conclusively established.
(iv) Plaintiff's Affidavit in Opposition
Defendant relies on certain portions of plaintiff's affidavit in opposition to support the claim that plaintiff was practicing law, namely:
From April 26 to July 7, 2022, I worked as a consultant and researcher for Plaintiff. This included phone and video calls, assistance in drafting her papers, and meetings at her apartment. She provided me with access to her NYSCEF account, as well as case files.
On July 15, 2022, I called her new attorney, Kevin McDonough, esq., and left a message to call me to try and settle the matter. I never received a response.(Doggart aff at ¶¶ 12, 18). And in response to defendant's allegation in her affidavit that plaintiff accessed her NYSCEF account to file items in the matrimonial matter on her behalf, plaintiff claims defendant "expressly asked me to perform this task, and [she] gave [him] her log-in details to do so...." (id. at ¶ 35; see also id. at ¶ 65 ["Plaintiff has never provided, or claimed to provide, Defendant with 'legal counsel' or 'legal advice.' What I provided to Defendant was research and assistance, for which there is no legal prohibition under Judiciary Law § 478"]).
As stated above, the Court "may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint" (Leon v Martinez, 84 N.Y.2d 83, 88 [1994]). Such affidavits, however, "are not to be examined for the purpose of determining whether there is evidentiary support for the pleading" unless the motion is converted into one for summary judgment (Rovello, 40 N.Y.2d at 635). This motion has not been so converted.
With respect to plaintiff's affidavit, the Court finds that it may be properly considered to remedy the defect in the complaint regarding the account stated cause of action. As defendant raised the failure to plead an element of an account stated cause of action, the plaintiff's affidavit, in response, alleges that his invoice was sent and received by defendant via e-mail, which, at this posture, may be sufficient to remedy any such defect in the complaint regarding that cause of action.
However, the Court finds that plaintiff's affidavit should not be otherwise considered for the remaining UPL issue, which is dispositive of the enforceability of the contract, as the affidavit only serves to provide evidentiary support for whether or not plaintiff was engaged in the unauthorized practice of law, which is inappropriate on a motion to dismiss.
For example, allegations such as "assist[ing] in drafting her papers," and accessing and filing legal documents on NYSCEF may infer the unauthorized practice of law. Yet another allegation such as trying to "settle the matter" could infer that he was attempting to settle defendant's alleged indebtedness to plaintiff himself, and not on defendant's behalf.
Which the Court notes could be particularly egregious in light of Domestic Relations Law § 235 as discussed infra, prohibiting anyone but the party and the attorney of record from accessing certain underlying matrimonial documents or evidence.
Contrary to plaintiff's contention, it is of no moment that defendant expressly asked plaintiff to file items on NYSCEF on her behalf. If plaintiff's conduct - in any way, shape, or form - resembles the practice of law and/or a non-lawyer's representation on behalf of another, it violates Judiciary Law § 478 (Jud L § 478 ["It shall be unlawful for any natural person to practice or appear as an attorney-at-law or as an attorney and counselor-at-law for a person other than himself or herself in a court of record in this state..."]). This is so even if the party gives express consent to the non-lawyer for that very purpose (see, e.g., Discover Bank v Gilliam, 199 A.D.3d 645, 646-47 [2d Dept 2021] ["The designation as an attorney-in-fact under General Obligations Law §§ 5-1502A\-5-1502N does not confer upon a designated agent the right to provide representation as an attorney-at-law, and "cannot be read to displace the provisions of Judiciary Law § 478"], quoting Whitehead, 8 A.D.3d at 370).
4. CPLR 3211 (a) (3)
Capacity "concerns a litigant's power to appear and bring its grievance before the court" (Community Bd. 7 of Borough of Manhattan v Schaffer, 84 N.Y.2d 148, 152 [1994]). "Legal capacity to sue, or lack thereof, often depends purely on the litigant's status, such as that of an infant, an adjudicated incompetent, a trustee, certain governmental entities or... a business corporation" (Security Pac. Natl. Bank v Evans, 31 A.D.3d 278, 279 [1st Dept 2006]). A certain type of status "could disqualify that individual from seeking relief in court" (Community Bd. 7 of Borough of Manhattan, 84 N.Y.2d at 152).
Plaintiff's status as an individual, non-attorney, by itself, does not disqualify him from bringing this lawsuit. As explained above, the question of whether he violated the UPL statute remains outstanding. If he did, that may implicate capacity because plaintiff would be "foreclosed from seeking the assistance of the courts in enforcing" an illegal contract (Bonilla v Rotter, 36 A.D.3d 534, 535 [1st Dept 2007]; see id. ["a party to an illegal contract cannot ask a court of law to help him carry out his illegal object"], quoting Stone v Freeman, 298 NY 268, 271 [1948]). If he did not, then the Court sees no issue with his capacity to bring suit and seek relief in the courts.
C. Sealing and Confidentiality Issues - Domestic Relations Law § 235 & Uniform Rules
In the reply affirmation, defendant's counsel requests that the Court sanction plaintiff for his disregard of Domestic Relations Law (DRL) § 235, which provides in subdivision 1:
An officer of the court with whom the proceedings in a matrimonial action or a written agreement of separation or an action or proceeding for custody, visitation or maintenance of a child are filed, or before whom the testimony is taken, or his clerk, either before or after the termination of the suit, shall not permit a copy of any of the pleadings, affidavits, findings of fact, conclusions of law, judgment of dissolution, written agreement of separation or memorandum thereof, or testimony, or any examination or perusal thereof, to be taken by any other person than a party, or the attorney or counsel of a party, except by order of the court.
Initially, the Court has little doubt that this rule applies to the instant action, even though it is one to recover for breach of contract, because the documents plaintiff filed in this motion were from a matrimonial action whose files were subject to the rule (cf. Jensen v Jensen, 103 Misc.2d 49, 50-52 [Sup Ct NY County 1980] [DRL § 235 does not apply to a breach of contract action under a separation agreement because it is not a matrimonial action]; Bich v Bich, 69 Misc.3d 874, 875-77 [Sup Ct NY County 2020] [Lebovits, J.] ["an action that seeks to enforce a contract, or seeks a declaratory judgment, does not become subject to Domestic Relations Law § 235's restrictions merely because the underlying legal agreement or unsettled legal issue has arisen out of a marriage"]).
"The rule is addressed to officers and clerks of the New York Supreme Court" (Danziger v Hearst Corp., 304 NY 244, 248 [1952]). While "Domestic Relations Law § 235 (1) prohibits a court employee from disseminating papers filed in a matrimonial action[, it] does not place any such prohibition on litigants" (Tornheim v Blue & White Food Products Corp., 73 A.D.3d 747, 748 [2d Dept 2010], quoting Parker v Parker, 2 Misc.3d 484, 492 [Sup Ct Nassau County 2003] [internal quotation marks omitted]). "Nor does the rule prohibit publication of the details of a matrimonial action that are obtained from a source other than the files of the court" (Danziger, 304 NY at 248).
"While considerations of professional responsibility may limit what an attorney can do with such papers, and other considerations may control the use of matrimonial papers in other litigation, the parties involved appear to be free to make liberal disclosure of their papers" (Alan D. Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law C235:1).
Here, while defendant is at liberty to do what she pleases with her matrimonial papers, it is unclear whether defendant ever consented to the disclosure to plaintiff. Her affidavit states that plaintiff accessed her NYSCEF account and suggests that plaintiff's e-filing of documents to NYSCEF was one of the reasons why she stopped communicating with him (Praeger aff at ¶¶ 6-7). Whereas plaintiff's affidavit claims defendant expressly permitted him to access the matrimonial files and expressly asked him to file documents for her (Doggart aff at ¶¶ 12, 35). Accordingly, the Court cannot determine whether defendant consented to giving plaintiff the matrimonial papers, and rightfully exercised her right to such disclosure.
If she did not consent, then the Court would have to determine which papers fell within § 235's restrictions.
The Court notes an interesting difference in the Uniform Rule regarding CPI applicable to Supreme Court (122 NYCRR § 208.5 [e] [1]) versus this Court, the New York City Civil Court (22 NYCRR § 208.4 [b] [1]) (which is discussed infra). There is a single additional subdivision in the Supreme Court rule at subdivision (v) that specifically prohibits "any of the documents or testimony in a matrimonial action protected by Domestic Relations Law section 235 or evidence sealed by the court in such an action which are attached as exhibits or referenced in the papers filed in any other civil action." This Court sees no discernable difference as to why the rule does not exist in the Civil Court. Indeed, if plaintiff's alleged fees totaled over $50,000.00 (which is this Court's jurisdictional limit), then the exhibits described infra (plaintiff's exhibits D, H, J, K, and M) would all have been prohibited from public filing.
As explicitly noted in the statute, "[t]he papers which may not be revealed include pleadings, affidavits, findings of fact, conclusions of law, judgments, written separation agreements or memoranda of such agreements, or testimony (i.e., transcripts)" - and "it does not include court decisions and orders, such as orders made on motions or post-trial decisions" (Alan D. Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law C235:1 [emphasis added]).
Here, plaintiff's exhibits D (transcript of phone call recording of defendant with her children), H (5/10/2022 court transcript), J (Lawrence Praeger affidavit dated 6/2/2022), K (5/10/2022 court transcript), and M (Lawrence Praeger affidavit dated 3/11/2022) all appear to fall within the statute's restrictions.
Additionally, while exhibit L (Lawrence Praeger statement of net worth) may not necessarily fall within the statute's restrictions (see generally Parker, 2 Misc.3d at 491 [finding that, in a motion for a protective order pursuant to CPLR 3103, that "the financial information revealed in a matrimonial deposition is not unlike that discoverable in any tort action involving personal injury and claims for economic loss including loss of consortium which may involve details of litigants' sexual relations"]), it is subject to protection of confidentiality per Uniform Rule 22 NYCRR § 208.4 as discussed infra.
Further, while the decision and order dated 6/9/2022 on motion sequence no. 11 in the matrimonial matter may be excluded from the statute's restrictions, it could still be subject to seal or redaction on other grounds, such as, e.g., Uniform Rule 22 NYCRR § 216.1 (see, e.g., F.L. v J.M., 209 A.D.3d 430, 430-31 [1st Dept 2022] ["modification of the case caption" was proper as it was "designed to protect the parties' privacy, and that of their minor child"]; Anonymous v Anonymous, 263 A.D.2d 494, 494-95 [2d Dept 1999] ["There was an overriding concern to ensure that one party to the divorce settlement negotiations did not use the otherwise protected scurrilous material extensively referred to and repeated in the sealed documents to gratify private spite or force a desired settlement by threat of disclosure"]). Accordingly, aside from the confidentially protected information (CPI) as defined in Uniform Rule 22 NYCRR § 208.4, there is nothing to stop a party from moving to seal these documents pursuant to 22 NYCRR § 216.1 upon good cause shown.
However, regardless of the potentially protected matrimonial papers per DRL § 235, the Court sua sponte finds that two of plaintiff's exhibits violate this Court's Uniform Rule regarding confidential personal information (CPI). Uniform Rule 22 NYCRR § 208.4 regarding papers filed in court provides:
(b) Omission or Redaction of Confidential Personal Information in Civil Actions and Proceedings.
(1) Except for any action or proceeding arising under the Vehicle and Traffic Law, or prosecution of a violation of an ordinance of a city, town or village, or in a petition for change of name under the Civil Rights Law, or as otherwise provided by rule or law or court order, and whether or not a sealing order is or has been sought, the parties shall omit or redact confidential personal information in papers submitted to the court for filing. For purposes of this rule, confidential personal information (CPI) means:
(i) the taxpayer identification number of an individual or an entity, including a social security number, an employer identification number, and an individual taxpayer identification number, except the last four digits thereof;
(ii) the date of an individual's birth, except the year thereof;
(iii) the full name of an individual known to be a minor, except the minor's initials; and
(iv) a financial account number, including a credit and/or debit card number, a bank account number, an investment account number, and/or an insurance account number, except the last four digits or letters thereof.
Here, plaintiff's exhibits B and L contain such CPI and, as directed below, will be sealed and plaintiff will be required to re-submit those exhibits with the appropriate redactions.
D. Sanctions per Uniform Rule 22 NYCRR § 130-1.1
Finally, plaintiff's affidavit in opposition requests that the Court impose sanctions against defense counsel pursuant to Uniform Rule 22 NYCRR § 130-1.1. The Court does not find defendant's motion or its defense to be frivolous, as the Court found above that the allegations regarding plaintiff's unauthorized practice of law, if true, would be meritorious and successfully dispose of the entire complaint. The Court also finds that any putative "falsities" are material issues of fact that will be resolved upon discovery and/or the ultimate conclusion of the case (see, e.g., Ray v Ray, 180 A.D.3d 472, 474 [1st Dept 2020], lv to appeal dismissed, 35 N.Y.3d 1007 [2020]; cf. Iacovacci v Brevet Holdings, LLC, 198 A.D.3d 565, 566 [1st Dept 2021]).
III. Conclusion
Accordingly, it is hereby ORDERED that plaintiff's motion for default judgment is denied (motion sequence no. 001); and it is further
ORDERED that defendant's motion to dismiss or alternatively excusing its default and permitting defendant to answer or appear is granted in part only to the extent of excusing the default and directing service of an answer (CPLR 3012[d]) and is otherwise denied (motion sequence no. 002); and it is further
ORDERED that defendant file and serve an answer to the complaint within 45 days after service of a copy of this order with notice of entry; and it is further
ORDERED that upon service of a copy of this order, the Clerk is directed to seal plaintiff's exhibits B and L submitted in opposition to defendant's motion (motion sequence no. 002) and to keep these files separate and apart from the rest of the court's files; and it is further
ORDERED that plaintiff shall file and serve redacted exhibits B and L in accordance with Uniform Rule 22 NYCRR § 208.4 (b) (1) within 45 days after service of a copy of this order with notice of entry.
This constitutes the decision and order of the Court.