Opinion
23068/2010.
May 20, 2011.
Marzec Law Firm, P.C., by Darius A. Marzec, Esq., Broadway, New York, NY, for the Plaintiff.
Kenneth J. Gorman, Esq., New York, NY, for the Defendants Earl Seth David, Law Offices of Earl David.
No appearance, for Defendants Tanc, Inc., and the Estate of Ava Norris.
The following papers numbered were read on this motion:
Notices of Motion, Affirm., Exhibits...............................................1-3 Affirmations in Opposition.........................................................4-5 Affirmations in Reply..............................................................6-7 So-ordered Judicial Subpoena Duces Tecum and Certified Copy of Death Certificate...7-8The plaintiff Krzysztof Postawa ("Postawa") contends that he was a client of suspended attorney Earl Seth David ("David"). David was suspended from the practice of law by the States of New York ( 3 AD3d 174 [1st Dept. 2004] [suspension of 15 months, citing numerous extenuating circumstances]) and New Jersey ( 181 NJ 326, 857 A2d 648 [reciprocal discipline of 15-month suspension], and later reinstatement, 186 NJ 459, 896 A2d 472). A review of the List of Disciplined Practitioners of the United States Department of Justice's Executive Office for Immigration Review further reflects that David was suspended from the practice of immigration cases for a period of 15 months effective July 9, 2004.
Plaintiff Postawa claims that David mishandled his case. Making matters worse, Postawa contends that his alleged representation by David occurred during the period of his suspension from the practice of law. Postawa contends that David accomplished his representation through the aid and subterfuge of Ava Norris, a non-lawyer who died on July 4, 2010, and her company, TANC, Inc., doing business as The Ava Norris Company. Postawa complains that he paid over $30,000 to Ava Norris, and thus presumably to David, for an immigration problem that David mismanaged. The handwritten agreement between Postawa and TANC, Inc., agreeing to help Postawa obtain a green card is dated September 13, 2004. David is not mentioned in the agreement between Postawa and TANC, Inc. David, on these motions, contends that he had never heard of Postawa until he got a telephone call from Postawa's attorney, Darius A. Marzec, Esq., on December 22, 2010, informing him that an emergency order to show cause would be brought the next day.
Represented by Darius A. Marzec, Esq. ("Marzec"), of the Marzec Law Firm, P.C., the plaintiff filed his summons and complaint in this Court on September 10, 2010. In the complaint, Marzec contends that David is located in New Jersey. In more recent court filings, Marzec contends that David is hiding at an unknown address in Canada.
Marzec, on behalf of Postawa, on Dec. 23, 2010, filed his request for judicial intervention and an order to show cause that sought production of Postawa's immigration files. By order to show cause, signed by the undersigned on Dec. 23, 2010, the Court granted the ultimate relief, in an "up-front order," with a temporary restraining order requiring the production of any and all papers relating to Postawa that may be in the custody or possession of the defendants, including Postawa's alleged immigration file. The order to show cause was initially returnable on January 13, 2011, and eventually adjourned to February 24, 2011, to allow for further motion practice.
Subsequent to this order, the Court so ordered a judicial subpoena duces tecum requiring the production of Ava Norris's death certificate from the New York City Department of Mental Health and Hygiene. The official death certificate reflects that Norris died on July 4, 2010.
By motion filed on January 12, 2010, at 10:37 A.M., Marzec moved, pursuant to CPLR 306-b, for an extension of time to serve David, whom Marzec contends absconded or moved to Canada, and for an alternate, judicially devised method of service, pursuant to CPLR 308(5). Two hours later, at 12:48 P.M. of Jan. 12, 2011, the David defendants moved to dismiss this action for lack of jurisdiction and for improper service. Interestingly, Kenneth J. Gorman, Esq., served his motion to dismiss, according to the affidavit of service on Jan. 10, 2011, by first class mail. Marzec, on behalf of plaintiff, served his motion by overnight mail on Jan. 11, 2011. These motions were filed in advance of the initial return date of Jan. 13, 2011 of the order to show cause.
Counsel for David, Kenneth J. Gorman, Esq. ("Gorman") seeks dismissal of the action for plaintiff's failure to serve the defendant within the 120 days from the filing of the complaint and also for lack of personal jurisdiction over David and the co-defendant Law Offices of Earl David. Gorman contends that David never represented Postawa on an immigration matter or any other legal problem. In support of the cross motion, Gorman has submitted David's own affidavit — notarized by a Notary Public from Toronto, Province of Ontario, Canada. In a nine page affidavit, with 20 paragraphs, David disputes much of Marzec's allegations.
The Court notes that the type of clients in need of the expert services of a lawyer specializing in immigration law represent the most vulnerable of society. These clients are unfamiliar with English, insecure in their ability to communicate, embattled by a complex system of immigration laws, and frightened of being deported.
If David were found to have stolen from Postawa and took his money for services rendered while he was under multiple orders of suspension from federal and state jurisdictions, such illegal activity is offensive, or, as Marzec states inelegantly, it "is not only fraudulent but irreprehensible [sic]." Affirmation of Darius A. Marzec, Esq., p. 4, para. 6, dated Feb. 15, 2011.
David admitted that Ava Norris and her company supplied translation and other services for him and his clients, but that activity ceased upon his order of suspension. David swears:
. . . I had never represented the plaintiff in any legal matter, let alone the immigration case at issue.
******
.... The first time I heard of the plaintiff was on December 22, 2010, when Mr. Marzec called my office and demanded that I appear in Court the following day.
David thus says that he is not in possession of papers belonging to Postawa since he never represented him and thus cannot return papers that he did not receive.
In the present case, Postawa relies principally upon a writing signed by the plaintiff and allegedly Ava Norris, dated September 13, 2004. The writing is on the letterhead of defendant "Tanc, Inc. D/B/A The Ava Norris Company." Postawa, born in Poland, claims that he did not understand English at the time he signed the writing, agreeing to an "attorney fee" of $20,000. Norris's death certificate indicates that she was born in Poland on August 15, 1954, and presumably the Polish-speaking plaintiff sought the help of an individual who spoke his language.
In the agreement that Postawa made with defendant TANC, Inc., on September 13, 2004, the name of the lawyer who is to supply the legal services to obtain the green card is not mentioned. David's name is not mentioned in the writing, and it was not signed by him. Ava Norris will not be able to shed any light on this case, since she died on July 4, 2010, two months before Marzec filed his complaint on behalf of Postawa.
With this factual backdrop, even if one were to accept Postawa's allegations that he had been defrauded, there is no documentary evidence that implicates David. David swears that, under an order of suspension from the practice of law from April 2004, he could not have represented Postawa in September 2010. David's name is not mentioned any where in the contract. David swears that he never represented Postawa, did not meet him, and had not heard of him until the motion practice in this case.
Even before discussing the present motions before the Court, the statute of limitations for a claim for legal malpractice is three years. CPLR 214 ["regardless of whether the underlying theory is based in contract or tort"]; McCormick v Favreau , 82 AD3d 1537 {3rd Dept. 2011]; Krichmar v Scher , 82 AD3d 1164 [2nd Dept. 2011]; Weksler v Weksler, 81 AD3d401 [1st Dept. 2011]; Tsafatinos v Lee David Auerbach, P.C. , 80 AD3d 749 [2nd Dept. 2011]; DiGiacomo v Levine , 76 AD3d 946 [2nd Dept. 2010]; accord, Board of Managers of the Bay Club v Borah, Goldstein, Altschuler, Schwartz Nahins, P.C. , 29 Misc 3d 1233[A], 2010 WL 5060649, 2010 NY Slip Op 52129[U] [Sup Ct Queens County 2010] [decision by the undersigned].
This is not a scenario where plaintiff can claim that the statute of limitations should be tolled because David hid his identity as an alleged lawyer, using or abusing TANC, Inc, doing business as The Ava Norris Company. Postawa states that he consulted David, believing he was a licensed lawyer, although the consultation may have occurred during David's suspension from practice. See, Jones v Cox, 316 SW2d 616 [Tenn Ct App 2008] [statute of limitations for legal malpractice not tolled where there was an intentional delay in serving process]; Riemers v Omdahl, 687 NW2d 445 [ND 2004] [same].
Despite Marzec's attempts to style the case as breach of a fiduciary duty, the essential claim against David is for legal malpractice — which, as stated, should have been commenced within three years from the act constituting the malpractice. According to the complaint, Postawa alleged that he last spoke with David "on or about October 2004." Complaint, para. 20. Postawa also contends that his last conversation with Ava Norris was "[o]n or about 2006." Id., para. 27. This action is thus untimely, despite Marzec's attempt to allege that "[o]nly on or about 2009, the Plaintiff realized he was defrauded by the Defendants." Id., para. 29. The essence of this action is for legal malpractice despite the attempt by Marzec to bootstrap it to a fraud. See, Tsafatinos v Lee David Auerbach, P.C. , 80 AD3d 749 , supra; In re HSBC Bank U.S.A., 70 AD3d 1324, 1325 [4th Dept.], lv. to appeal denied, 14 NY3d 710; 6645 Owners Corp. v GMO Realty Corp., 306 AD2d 97, 98 [1st Dept. 2003] [citing the above-quoted language of CPLR 214(6)]; Harris v Kahn, Hoffman, Nonenmacher, Hochman, LLP , 59 AD3d 390 , 391 [2nd Dept. 2009].
Even assuming arguendo that David did meet with Postawa and represented him — and David vigorously denies the charges — the expiration of the statute of limitations and the merit or lack of merit to the complaint are to be considered relevant factors in determining whether this Court should exercise its discretion, under CPLR 306-b, to give the plaintiff another 120 days to serve the complaint. The leading case on whether to grant or deny a motion to extend the time to serve under CPLR 306-b is Leader v Maroney, Ponzini Spencer, 97 NY2d 95. The Court of Appeals stated that reasonable diligence in attempting service is not the "gatekeeper" in deciding such motions. Id. at 104. Courts, instead, in exercising their discretion, are required to weigh and balance an amalgam of factors including the diligence of past attempts to serve, the expiration of the statute of limitations, the length of delay in service, the promptness of plaintiff's request for an extension of time to serve, and prejudice to a defendant. Id. at 101, 105-106 n. 3.
First, as to the diligence of prior attempts to serve the defendants, Marzec, Postawa's atttorney, keeps on referring to his efforts to find and serve David as being "duly diligent." This Court does not find that to be the case. Marzec asked a lawyers' service to serve a copy of the order to show cause on an address in New Jersey. As Gorman points out, the owner of a private mail facility in New Jersey that David uses was authorized to accept service of process. Marzec knew about that private facility, but simply did not have David served with process there. Alex Molman ("Molman") submitted an affidavit that he is the owner of Postmark Plus, 1070H Route 34, South Matawan, New Jersey 07747. Molman and his assistant, Michael Ferrador, were both competent and authorized to accept service of process for David. They were not so served.
Other than that attempt, Marzec tried to find an address for David on the internet, but was unsuccessful. Those efforts by Marzec are paltry and not "duly diligent." See, Forte v Lutheran Augustana Extended Care and Rehabilitation, 2009 WL 4722325 [EDNY 2009] [party did not show diligence in attempting service thus warranting denial of motion to extend time to serve]; Braxton v McMillan , 76 AD3d 607 [2nd Dept. 2010][failure to show due diligence required denial of motion to extend time to serve]; accord, Krisilas v. Mount Sinai Hospital , 63 AD3d 887 [2nd Dept. 2009]; McSorley v Spear , 50 AD3d 652 [2nd Dept. 2008]; Estate of Waterman, 46 AD3d 63 [2nd Dept. 2007].
As discussed above, the statute of limitations against the David defendants on the cause of action for legal malpractice has expired. Even assuming arguendo that David did represent Postawa, and, again, David vigorously denies that accusation, the statute may well have expired three years after September 13, 2004, notwithstanding Marzec's bootstrapped theory of fraud.
When Marzec purchased the request for judicial intervention and brought the first order to show cause to obtain Postawa's immigration file, on December 23, 2010, at that time, and even sooner, he should have moved, pursuant to CPLR 306-b, for an extension of time to serve the David defendants. Instead, he waited until January 12, 2011, when he and Gorman, David's lawyer, raced to the courthouse, as discussed above, to file their motions: the motion to extend time by plaintiff, and cross motion to dismiss by the David defendants. The race to the courthouse by competing counsel was probably attributable to the fact that the return date of Marzec's original order to show cause, dated December 23, 2010, requiring the production of Postawa's immigration file by David, was January 13, 2011.
The other factor in weighing whether to grant or deny Postawa's motion under CPLR 306-b for an extension of time to serve is the prejudice to defendants. "Lengthy delays in service can lead a court to infer substantial prejudice." Williams ex rel. Fowler v Nassau County Med. Ctr., 6 NY3d 531, 538-539 n. 3 (2006), citing Leader, 97 NY2d 95, 107, supra. In the present action, there is no need to infer substantial prejudice, because actual prejudice to the David defendants is demonstrated. As stated, Ava Norris died on July 4, 2010. Plaintiff should have been busy serving litigation papers long ago. Plaintiff waited to do so only after the death of Ava Norris, whether in ignorance of Norris's demise or relying on that fact. Norris's death constitutes extreme prejudice to defendants' case. Norris was the key witness in whether David was practicing law illegally while he was under an order of suspension, and on whom she shared the money given to her by Postawa, and with which attorney, if any, she was working in order to help obtain a green card for the plaintiff, who ultimately obtained one from subsequent efforts.
This Court, weighing all of the above factors, believes that the complaint has little merit and that the prejudice to the David defendants by the death of Norris is extreme and not easily overcome. The Court thus denies the motion by the plaintiff to grant an extension of time, pursuant to CPLR 306-b, to serve the complaint. See, Greenburgh Cent. School Dist. No. 7 v Westchester County Human Rights Comm'n, 82 AD2d 980 [2nd Dept. 2011]; Horowitz v Coch , 82 AD3d 707 [2nd Dept. 2011] [reversing lower court's granting of motion to extend time to serve under CPLR 306-b]; Calloway v Wells , 79 AD3d 786 [2nd Dept. 2010] [denying motion to extend time to serve]; Braxton v McMillan , 76 AD3d 607 , supra; Johnson v Concourse Village, Inc ., 69 AD3d 410 [1st Dept.], lv. to appeal denied, 15 NY3d 707 [extension of time not warranted]; Esposito v Issac, 68 AD3d 483 [1st Dept. 2009]; Varon v Maimonides Med. Ctr. , 67 AD3d 779 [2nd Dept. 2009]; Shea v Bloomberg, L.P. , 65 AD3d 579 [2nd Dept. 2009]; Hine v Bambara , 66 AD3d 1192 [3rd Dept. 2009] [interest of justice did not compel grant of motion for an extension of time to serve under CPLR 306-b]; Ciferri v DiNapoli, 2011 WL 486117, 2011 NY Slip Op 30235[U] [Sup Ct Albany County 2011] [denying motion]. But see, Bumpus v New York City Transit Authority, 66 AD3d 26, 32 [2nd Dept. 2009] [affirming the lower court's granting of an extension of time under CPLR 306-b in the interest of justice].
Although no further discussion is necessary, the Court denies the branch of the plaintiff's motion seeking a judicially devised method of expedient service under CPLR 308(5). Marzec argues that the Court should direct an alternative method of serving David in Canada. Marzec, however, does not explore what alternative method under CPLR 308(5) would be calculated to constitute valid service across American borders and that plaintiff exhausted all other methods of reasonable service before seeking aid of this Court with a special, extraordinary method of service . See, Alfred E. Mann Living Trust v ETIRC Aviation S.a.r.l. , 78 AD3d 137 , 141-142 [1st Dept. 2010] [citing several federal and state decisions that have permitted service by email]; Dai Associates, P.C. v Gao, 2011 WL _______________, 2011 NY Slip Op __________ [Sup Ct Queens County 2011] [decision by the undersigned allowing service by email of court papers in addition to the address listed by the pro se defendant in an unverified answer].
Even then, the plaintiff's complaint and litigation papers should have been served upon and left with the managing personnel of the mail drop facility in New Jersey. Instead, Marzec blames a New Jersey Lawyers' Service for the inexplicable snafu or misunderstanding in not ordering the service be made upon David's mail drop facility. Marzec does not suggest or explain how a judicially devised method of service would be calculated to advise David, who is alleged to be residing in Canada, of the proceedings. The facts of this case make resort to judicially devised service, under CPLR 308(5), improper.
The Court, finally, appears puzzled by a needless, gratuitous attack contained in Marzec's papers. Marzec claims that he was kept waiting in the undersigned's courtroom for numerous hours while the undersigned's Principal Court Attorney, Howard L. Wieder, Esq., conducted an ex parte telephone conversation with David and his counsel. Marzec does not indicate why he has made such an allegation — replete with many inaccurate statements and half-truths. It appears that Marzec is arguing that, if such a telephone conversation took place, it might pose enough nexus with New York State to constitute an appearance by David, although Marzec does not clearly say so.
The Court needs to set the record straight. Marzec brought his emergency order to show cause on Wednesday, December 23, 2010, a busy day just prior to the holiday break. Mr. Wieder informed Marzec that he would not have to wait and that Chambers would contact him if the order to show cause was being signed. As reflected on the legal back of Marzec's papers, Mr. Wieder recorded Marzec's cell phone number and fax number on the legal back of the order to show cause. During the Court's lunch period on Dec. 23, 2010, Mr. Wieder faxed to Marzec's office a copy of the signed order to show cause. Thus contrary to Marzec's allegations, the undersigned's staff did everything possible to help Marzec and not tax either his time or energy.
Marzec next claims that Mr. Wieder had an insupportable ex parte conversation with David and his attorney, Kenneth J. Gorman, Esq. Mr. Wieder has not talked with Mr. Gorman in any telephone conversation and may have seen him only with regard to the submission of the above-enumerated papers taken on this motion, in the presence of Marzec. Mr. Wieder did have a brief conversation with defendant David on Dec. 23, 2010. What Marzec fails to explain, as part of the procedure for making an emergency order to show cause in Supreme Court, Queens County, Marzec was required to inform David of the making of the proposed order. Marzec, on Dec. 22, 2010, notified David that the order would be submitted to the Ex Parte Office of the Court, by letter faxed to David in New Jersey and containing a New Jersey address.
On December 23, 2010, the undersigned's part Clerk, Ms. Jean Cawley handed to Mr. Wieder a message slip saying that David was on the phone requesting an adjournment of the order to show cause. Mr. Wieder, having reviewed the papers, notified David that, in all likelihood, based on the allegations contained therein, his request for an adjournment would be denied, and Mr. Wieder so notified defendant David, after informing and advising the undersigned of the telephone call and the facts.
Marzec's purpose was to argue that a telephone call by David requesting an adjournment of an order to show cause constitutes an appearance, a submission to the Court's jurisdiction, and a waiver of all personal defenses. One purposeful act might be considered sufficient to invoke long-arm jurisdiction, but David's telephone call to the Court, on Dec. 23, 2010, requesting an adjournment of the emergency order to show cause is insufficient. See, Executive Life Ltd. v Silverman , 68 AD3d 715 [2nd Dept. 2009]; Kimko Exchange Place Corp v Thomas Benz, Inc. , 34 AD3d 433 [2nd Dept. 2006], lv. to appeal denied, 9 NY3d 803 [defendant's making a few telephone calls do not qualify as purposeful acts constituting the transaction of business in New York]; Rabizzadeh v Nagel Auktionen GMBH Co. KG, 28 Misc 3d 1205[A], 2010 WL 2670791, 2010 NY Slip Op 51154[U] [Sup Ct Nassau County 2010]. The retention of Mr. Gorman as defense counsel to contest jurisdiction similarly is insufficient to base jurisdiction. See, People v Byfield, 131 Misc 2d 884 [NYC Crim Ct New York County 1986] [attorney can make special appearance to contest jurisdiction in a civil case] [citing CPLR provisions].
The plaintiff's motion for an extension of time to serve the complaint, pursuant to CPLR 306-b, and for a judicially devised service, pursuant to CPLR 308(5), is denied.
The motion by the David defendants to dismiss the complaint against them, pursuant to CPLR 3211, for lack of jurisdiction and improper service is granted. The complaint is dismissed as to defendants Earl Seth David and the Law Offices of Earl David. The action is severed as to the remaining defendants.
The motion by plaintiff, by order to show cause, for a preliminary injunction ordering that any work done by the defendants Earl Seth David, the Law Offices of Earl David, TANC, Inc. doing business as The Ava Norris Company, and the Estate of Ava Norris, is denied as moot. The temporary restraining order contained in the order to show cause signed by the undersigned on Dec. 23, 2010, is vacated.
The foregoing constitutes the decision, order, and opinion of the Court.