Wadsworth Avenue v. Paul Hastings

Full title: WADSWORTH AVENUE ASSOCIATES, Plaintiff, v. PAUL HASTINGS JANOFSKY WALKER…

Court: Supreme Court of the State of New York, New York County

Date published: Nov 20, 2006

No. 11004506 (N.Y. Sup. Ct. Nov. 20, 2006)

Opinion

11004506.

November 20, 2006.

DECISION/ORDER

ROLANDO T. ACOSTA, Supreme Court Justice.

The following documents were considered in reviewing defendant Kennedy Johnson Gallagher ("Kennedy Johnson")'s motion to dismiss the complaint pursuant to CPLR 3211(a)(7); for an order assigning this action to Justice Rolando T. Acosta; a preliminary injunction restraining plaintiff from commencing any further actions, motions or proceedings involving Wadsworth Avenue Associates, LP, without prior permission of the Court; and for sanctions against Robert H. Haggerty for filing frivolous motions:

Papers Numbered Notice of Motion Affidavit 1-2 (Exhibits 1-20) Affirmation in Opposition 3 Reply Affirmation Memorandum of Law 5 (Exhibits A-B [1-20])

,

Plaintiff asserts only one cause of action in its third action dealing with the sale of the Wadsworth Avenue property, namely, that Kennedy Johnson violated Judiciary Law § 487(1) by deceiving the court about various issues related to Wadsworth Avenue Associates v Maynard, Index No. 601740/03. Pursuant to ¶ 17 of the complaint, defendant deceived the court into making erroneous determinations, inter alia, as follows:

i. that the theft had been prosecuted in the Prior Action;

ii. that the Prior Action was a derivative action;

iii. that plaintiff had the burden of proof on all issues;

iv. that the DHCR Rent Rolls consisted in their entirety of maximum allowable rents;

v. that the partnership agreement requires and a rule of law establishes as a condition precedent to a distribution to partners, the payment of all known partnership liabilities to third parties;

vi. that in a CPLR 5015 proceeding the decision sought to be vacated remains the law of the case;

vii. that a judgment may be rendered in an issue never pleaded, and

viii. that a recording in the books of the partnership the results of the theft causes theft to fall within the scope of the authority of the general partner of the partnership rendering indemnifiable his defense of the Action.

Judiciary Law § 487(1) states, in relevant part, that "[a]n attorney or counselor who: (1) [i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party . . . [i]s guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action." To properly plead this cause of action, plaintiff must allege facts showing that the attorney engaged in a chronic and extreme pattern of legal delinquency. Solow Management Corp. v. Seltzer, 18 A.D.3d 399 (1st Dept. 2005).

In reviewing a motion to dismiss pursuant to CPLR § 3211(a)(7), the Court must accept the allegations of the complaint as true, and accord plaintiff the benefit of every possible favorable inference and determine only whether the facts as alleged fit within a cognizable legal theory. CBS Corp. v. Dumsday, 268 A.D.2d 350 (1^st Dept. 2000); see also Polonetsky v. Better Homes Depot, Inc., 97 N.Y.2d 46 (2001) (motion must be denied if "from [the] four corners [of the pleading] factual allegations are discerned which taken together manifest any cause of action cognizable at law"); Weiner v. Lazard Freres Co., 241 A.D.2d 114 (1^st Dept 1998 ("so liberal is th[is] . . . standard that the test is simply 'whether the pleading has a cause of action,' not even 'whether he has stated one'").

Here, notwithstanding CPLR 3211(a)(7)'s liberal standard, plaintiff has failed to allege a chronic and extreme pattern of legal delinquency. Indeed, it is unclear from the reading of the complaint or plaintiff's papers how Kennedy Johnson deceived this Court. Rather, it is patently clear to this Court that plaintiff is simply unsatisfied with the outcome of his previous action, Wadsworth Avenue Associates v Maynard, Index No. 601740/03, and the 17 motions filed in that case. A review of those decisions show plaintiff had ample opportunity to litigate the issues that the Court was supposedly deceived into making erroneous rulings about. Indeed, on two separate occasions, the Court specifically asked plaintiff to provide the Court with evidence of theft on Maynard's part, but he failed to do so. Plaintiff's recourse was to move to reargue or appeal this Courts's rulings, which it did. Unfortunately for plaintiff, the Appellate Division, First Department, dismissed the appeal.See In Re Wadsworth Avenue Associates v Maynard, 23 A.D.3d 302 (1^st Dept. 2005). The Appellate Division, First Department noted, however, that if "the appeal was properly before us, we would find it to be without merit. There was no evidentiary support for plaintiff's claim that defendant had committed theft." Id. Haggerty's two subsequent motion to reargue to the Appellate Division, First Department, were denied.

This Court has previously warned Robert H. Haggerty that he would be sanctioned if he continued his barrage of frivolous motion, and in fact sanctioned Haggerty the cost of defending his last motion under Index No. 601740/03. See Wadsworth Avenue Associates v Maynard, Index No. 601740/03, Motion Seq. 17. Imposing cost on Haggerty, however, does not deter his contemptuous behavior. Accordingly, this Court will "up the ante" and sanction Haggerty $5,000 pursuant to NYCRR 22 NYCRR 130-1.1(a), and continue doing so in increasing increments until Haggerty understands that his behavior will not be tolerated in this Court.

A hearing is not required in this case inasmuch as Haggerty has already explained to the Court why he has engaged in his conduct, namely his belief that notwithstanding the outcome of his prior actions, he can continue to relitigate his claims (and consequently harass Maynard and his attorneys) until the Court rules in his favor. In re Estate of Nicholas Marsh, 207 A.D.2d 749 (1^st Dept. 1994) (petitioner was provided adequate notice and opportunity to be heard, despite the absence of a formal evidentiary hearing, where court had apprised her of its intention to consider costs and sanctions and petitioner submitted an affidavit in opposition); Jalor Color Graphics, Inc. v. Universal Advertising Systems, Inc. 191 Misc. 2d 653 (App. Term, First Dept. 2002), aff'd 2. A.D.3d 165 (1^st Dept. 2003)("court was not required to hold a formal evidentiary hearing before finding defense counsel's conduct frivolous . . . since neither defendant nor its counsel submitted any meaningful response to the serious allegations of attorney misconduct specified by plaintiff). Haggerty's actions, however, are nothing more than harassment tactics, which this Court will not tolerate.

Based on the foregoing, it is hereby

ORDERED that the complaint is dismissed against defendant Kennedy Johnson Gallagher; and it is further

ORDERED that defendant's request that the instant action be assigned to this Part is moot inasmuch as the action is in this Part and in any event, the matter was properly assigned to this Court by the Clerk as a related matter; and it is further

ORDERED that defendant's request for a preliminary injunction restraining plaintiff from commencing any further actions, motions, or proceedings involving Wadsworth Avenue Associates without prior permission of the Court is denied; and it is further

ORDERED that sanctions are assessed against Robert H. Haggerty in the amount of $5,000.00 to be deposited by Robert H. Haggerty with the Lawyers' Fund for Client Protection.

This constitutes the Decision and Order of the Court.