Opinion
INDEX NO. 157986/2018
05-30-2019
DAVID DELBAUN, Plaintiff, v. SELF REPRESENTED KEVIN MCKEOWN, LAWRENCE FLEISCHER Defendant.
NYSCEF DOC. NO. 52 PRESENT: HON. ANDREW BORROK Justice MOTION DATE 10/11/2018, 11/13/2018 MOTION SEQ. NO. 001 002
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10, 11, 32 were read on this motion to/for PREL INJUNCTION/TEMP REST ORDR. The following e-filed documents, listed by NYSCEF document number (Motion 002) 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 48, 49 were read on this motion to/for DISMISS. Motion sequences 001 and 002 are consolidated for disposition. Upon the foregoing documents and for the reasons set forth on the record (5/31/2019), David Delbaum's motion for a preliminary injunction is granted without opposition (mtn. seq. 001) and Mr. Delbaum's motion to dismiss Kevin McKeown's counterclaims is granted. This action arises from a dispute over Mr. McKeown's use of a copyrighted book (the Book), co-authored by Mr. Delbaum and Lawrence Fleischer. The complaint alleges that Mr. McKeown offered to help Mr. Delbaum prepare a publication proposal for the Book. Mr. Delbaum accepted the offer and provided Mr. McKeown with a copy of the Book. Mr. Delbaum asserts that Mr. McKeown did not perform the work as promised and Mr. McKeown did not return the Book on request. As a result, Mr. Delbaum commenced this action for a permanent injunction, conversion, breach of contract, breach of the implied covenant of good faith and fair dealing and unjust enrichment. In his answer, Mr. McKeown asserts three counterclaims.
Motion Sequence 001 (Plaintiff's Motion for a Preliminary Injunction)
Mr. Delbaum brought his motion for a preliminary injunction by order to show cause (NYSCEF Doc. No. 11). The deadline to file responsive papers was September 28, 2018 and oral argument on this motion was originally scheduled for October 11, 2018. The record indicates that Mr. McKeown did not file any responsive papers. Further, Mr. McKeown did not appear for oral argument and at the hearing, New York State Supreme Court Justice Debra James recused herself from the case (NYSCEF Doc. No. 37, ¶ 38-39). Since the order of reassignment was issued on October 15, 2018, no further papers have been filed with respect to this motion. Accordingly, the plaintiff's motion for a preliminary injunction is granted without opposition.
Motion Sequence 002 (Plaintiff's Motion to Dismiss the Defendant's Counterclaims)
Dismissal under CPLR § 3211 requires that a court take "the allegations asserted within a plaintiff's complaint as true and accord plaintiff the benefit of every possible inference, determining only whether the facts as alleged fit within any cognizable legal theory" (Samiento v World Yacht Inc., 10 NY3d 70, 79 [2008]). Allegations that consist of bare legal conclusions, or factual claims inherently incredible or flatly contradicted by documentary evidence are not entitled to the same consideration (Caniglia v Chicago Tribune-New York News Syndicate, 204 AD2d 233, 233-234 [1st Dept 1994]). Mr. Delbaum argues that the three counterclaims asserted by Mr. McKeown should be dismissed because he fails to state a claim upon which relief can be granted. This court agrees. The first counterclaim alleges that "Delbaum and Fleischer, failed to take corrective action but chose to further advance their harassment of the defendant by continuing their knowing false filings" and the second counterclaim alleges that "Delbaum and Fleischer, owed a duty of good faith to the defendant to correct the fraudulent and harassing complaint after those corrections were brought to their attention"(NYSCEF Doc. No. 33, ¶ 96, 99). Mr. McKeown does not identify the relevant cause of action in the first two counterclaims. Further, Mr. McKeown asserts conclusory facts that do not support any cognizable legal theory that he could recover upon. The third counterclaim alleges that Mr. Delbaum violated Judiciary Law § 487 and seeks an order of referral to the Appellate Division, First Department, Attorney Grievance Committee (id., ¶¶ 102-106). Mr. McKeown's third counterclaim fails to state a cause of action because Judiciary Law § 487 is not applicable when Mr. Delbaum is a party to this action and represented by counsel (see Siller v Third Brevoort Corp., 145 AD3d 595, 596 [1st Dept 2016] [affirming the trial court's dismissal of a claim that an individual violated Judiciary Law § 487 by making false and misleading statements in an affirmation because the individual was a party to the action who was represented by counsel, and not acting in her capacity as an attorney]). Mr. McKeown's arguments in opposition are unavailing. Therefore, Mr. McKeown's three counterclaims are dismissed. Accordingly, it is ORDERED that plaintiff's motion for a preliminary injunction (mtn. seq. 001) is granted; and it is further ORDERED that the branch of plaintiff's motion for a preliminary injunction ordering defendant to return the original and all copies of the manuscript to plaintiff is granted; and it is further ORDERED that the branch of plaintiff's motion for a preliminary injunction ordering defendant to immediately return all copies of correspondence, emails, notes and other materials related to the unpublished book entitled "Harlem Kevorkian ... It Had To be Murder", United States Copyright Office Registration Number TXu 2-081-949 (the Book), is granted; and it is further ORDERED that the branch of plaintiff's motion for a preliminary injunction granting plaintiff access to all computers, electronic computing devices, servers, networks, electronic data storage media, and related hardware in defendant's possession, custody or control that contains a copy of the Book or any correspondence, emails, notes and all other materials related to the Book and to access electronically stored information on such computers, electronic computing devices, servers, networks, electronic data storage media, and related hardware concerning the Book is granted; and it is further ORDERED that that defendant, his agents, servants, employees and all other persons acting under the jurisdiction, supervision and/or direction of defendant, are enjoined and restrained, during the pendency of this action, from doing or suffering to be done, directly or through any attorney, agent, servant, employee or other person under the supervision or control of defendant or otherwise, any of the following acts:
(a) using or continuing to use plaintiff's Book;until the resolution of this case, or further court order; and it is further ORDERED that plaintiff's motion to dismiss the defendant's counterclaims against counterclaim defendant Kevin McKeown is granted (mtn. seq. 002); and it is further ORDERED that the parties are directed to appear for a preliminary conference in Courtroom 238, 60 Centre Street, New York, New York on September 30, 2019 at 11:30 am. 5/30/2019
(b) unlawful copying, use of and creation of derivative works from the Book or any portion thereof;
(c) deleting, altering, modifying, or tampering with any electronically stored information on any computers, electronic computing devices, servers, networks, electronic data storage media, and related hardware in Defendant's possession, custody or control that contains a copy of the Book or any correspondence, emails, notes and all other materials related to the Book;
(d) destroying disposing of any computers, electronic computing devices, servers, networks, electronic data storage media, and related hardware in defendant's possession, custody or control that contains a copy of the Book or any correspondence, emails, notes and all other materials related to the Book;
Mr. McKeown brings the counterclaim against Mr. Debaum and Lawrence M. Fleischer. Mr. Fleischer has not yet filed a response to the counterclaims.
DATE
/s/ _________
ANDREW BORROK, J.S.C.